Kevin Kowalski, Appellant,v.St. Francis Hospital and Health Centers, et al., Respondents, et al., Defendants.BriefN.Y.May 28, 2013To be Argued by: SUSAN E. GALVÃO (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 PLAINTIFF-APPELLANT BLEAKLEY PLATT & SCHMIDT Attorneys for Plaintiff-Appellant One North Lexington Avenue White Plains, New York 10601 Tel.: (914) 949-2700 Fax: (914) 683-6956 Date Completed: October 26, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................... iv STATEMENT OF FACTS .......................................................................................... 1 A. APPELLANT'S ADMISSION TO THE EMERGENCY ROOM AT THE DEFENDANT HOSPITAL AND THE ACCIDENT THAT RENDERED HIM A QUADRIPLEGIC ................................................ 1 PROCEDURAL HISTORY ......................................................................................... 9 A. APPELLANT COMMENCED SUIT ..................................................... 9 B. THE MEDICAL DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND THE ORDER OF SUPREME COURT DENYING THE MOTIONS AND DIRECTING THAT THE PARTIES PROCEED TO TRIAL ............................................................................................... 1 0 C. THE APPELLATE DIVISION, SECOND DEPARTMENT, REVERSED AND GRANTED SUMMARY JUDGMENT TO THE MEDICAL DEFENDANTS, DISMISSING ALL THE CLAIMS AGAINST THE MEDICAL DEFEND ANTS ....................................................................................... J I D. THIS COURT GRANTED APPELLANT LEAVE TO APPEAL ............................................................................................ 12 1 ARGUMENT ............................................................................................................... 13 POINT I THE MEDICAL DEFENDANTS HAD A COMMON LAW DUTY TO SAFEGUARD AND PROTECT APPELLANT, MEASURED IN PART BY REFERENCE TO HIS CAPACITY TO PROVIDE FOR HIS OWN SAFETY .................................................................................................. 13 A. THE COMMON LAW OF NEW YORK STATE RECOGNIZES THE EXISTENCE OF A DUTY OWED BY DOCTORS AND OTHER HEALTH CARE PROFESSIONALS TO THE PATIENTS WITHIN THEIR CARE .......................................................................................... 13 B. THE DUTY OF CARE OWED TO SEVERELY INTOXICATED OR OTHER WISE INCAPACITATED PERSONS ................................................................................................ 17 C. APPELLANT'S VOLUNTARY INTOXICATION DOES NOT SHIELD THE MEDICAL DEFENDANTS FROM LIABILITY FOR THEIR F AlLURE TO SAFEGUARD HIM ............. 23 POINT II THE APPELLATE DIVISION ORDER CARVES OUT AN IMPERMISSIBLE EXCEPTION TO THE COMMON LAW DUTY OF CARE OWED BY HEALTH CARE PROVIDERS TO THE PATIENTS WITHIN THEIR CARE ............... 26 A. THE STATUTORY STANDARDS FOR INVOLUNTARY COMMITMENT OF THE MENTALLY ILL, PURSUANT TO MENTAL HYGIENE LAW ARTICLE 9, ARE IMMATERIAL TO THE SCOPE OF THE MEDICAL DEFENDANTS' DUTY OF CARE ........................................................ 26 ll B. THE APPELLATE DIVISION'S CITATION TO MENTAL HYGIENE LAW § 22.09 AS A BASIS TO GRANT SUMMARY JUDGMENT ALSO IGNORES A DOCTOR'S COMMON LAW DUTIES TO THE PATIENTS WITHIN HIS CARE ............................................................................................... 31 POINT III THE CASES CITED BY THE APPELLATE DIVISION ONLY EXACERBATE THE ERROR AND DEEPEN THE CONFUSION REGARDING THE PROPER STANDARD OF CARE .......................................................................... 35 POINT IV THE APPELLATE DIVISION ERRED IN DECIDING THIS CASE AS A MATTER OF LAW, RATHER THAN ALLOWING A JURY TO CONSIDER THE REASONABLENESS OF THE MEDICAL DEFENDANTS' ACTS AND OMISSIONS ON THE DATE IN QUESTION ................. 40 A. THERE WAS AMPLE EVIDENCE TO SUPPORT A FACTUAL INFERENCE THAT THE MEDICAL DEFENDANTS BREACHED THEIR DUTY OF CARE TO APPELLANT .................................................................................... 41 B. THE MEDICAL DEFENDANTS' FAILURE TO ABIDE BY THE HOSPITAL'S INTERNAL PROTOCOLS PROVIDED FURTHER EVIDENCE ·THAT THEY BREACHED THEIR DUTY OF CARE TO APPELLANT ...................................................... 46 CONCLUSION ............................................................................................................ 51 111 TABLE OF AUTHORITIES Page(s) Cases Ayala v. Mohave County, Arizona, 2008 U.S. Dist. LEXIS 93418 (Dist. of Ariz. 2008) ............................................................................................. 19 Di Ponzio v. Riordan, 89 N.Y.2d 578 ( 1997) ................................................... 13, 14 Fagan v. Atlantic Coast Line Railroad Co., 220 N.Y. 301 (1917) ................... 20,25 Freeman v. St. Clare's Hosp. & Health Center, 156 A.D.2d 300, 300-301 ( l st Dep't. 1989) .................................................. 15, 16 Haber v. Cross County Hosp., 37 N.Y.2d 888 (1975) ............................................ 46 Horton v. Niagara Falls Memorial Med. Center, 51 A.D.2d 152 (4th Dep't. I 976) ......................................................................... 15 Juseinosld v. N.Y. Hosp. Med. Ctr. of Queens, 18 A.D.3d 713 (2d Dep 't. 2005) ................................................................................................... 46 Kadyszewski v. Ellis Hosp. Assn., 192 A.D.2d 765 (3d Dep't. 1993) ................................................................................................... 46 Lawlor v. Lenox Hill, 74 A.D.3d 695 (1st Dep't.), lv denied IS N.Y.3d 713 (2010) ......................................................... 12, 35, 36,37 Matter of MichaelS., 166 Mise 2d 875 ............................................................. 12, 36 Mottau v. State of New York, 17 4 Misc.2d 884 (Ct. of Claims 1997) ........................................................................... 12, 3 7, 3 8, 39 N.X v. Cabrini Medical Center, 97 N.Y.2d 247 (2002) .................................. passim P arvi v. City of Kingston, 41 N. Y .2d 5 53 ( 1977) ............................................ passim Pedraza v. Wyckoff Heights Medical Center, 191 Misc. 2d 659 (Sup. Ct. Kings Cty. 2002) ................................................................................... 46 Sanchez v. State, 99 N.Y.2d 247 ................................................................. 16, 45, 46 Santos v. Unity Hospital, 301 N.Y. 153 (1950) .......................................... 15, 23,40 Schneider v. Kings Highway Hospital Center, Inc., 67 N.Y.2d 743 ( l 986) ................................................................................................................... 5 l Tagle v. Jakob, 97 N.Y.2d 165 (200 l ) .............................................................. 13, 14 Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dep't. 1997) ................................................................................ 17, 18, 19, 20 IV White v. Sheehan Memorial Hosp., 119 A.D.2d 989 (4th Dep't. 1986) .................................................................................................. 15 Zophy v. State, 27 A.D.2d 414 (4th Dep't. 1967), affirmed no opinion 22 N.Y.2d 921 ( 1968) ................................................... 15, 16 Other Authorities CPLR § 21 03[b][2] ................................................................................................. 12 CPLR § 2103[b][f][1] ............................................................................................. 12 CPLR § 55 13 [b] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 McKinney's Statutes § 301 (a) ................................................................................. 33 Mental Hygiene Law§ 22.09 ........................................................................... passim MHL § 9.27 ............................................................................................................. 36 MHL § 9.39 ............................................................................................................. 36 N.Y. Vehicle & Traffic Law§ 1192 ......................................................................... 2 Restatement (2d) Torts, § 324 ........................................................................... 19, 20 v STATEMENT OF FACTS A. Appellant's Admission to the Emergency Room at the Defendant Hospital and the Accident That Rendered him a Quadriplegic Prior to December 20, 2006, Plaintiff-Appellant Kevin Kowalski (''Appellant" or ''Mr. Kowalski''), a divorced father of two young children, was a self-employed pool installer who struggled with alcoholism, particularly in the years since his marriage ended in divorce. He had gone through detoxification programs on several occasions but had a history of relapse as well as clinical depression. (R200; R203-209; R212-217). 1 On December 20, 2006, at approximately 11:30 a.m., Appellant was taken by a friend, Jason Herring, to the Emergency Room at Defendant-Respondent St. Francis Hospital and Health Centers (''the ER" or "the Hospital'') in a highly inebriated state - having consumed excessive amounts of alcohol and prescription medication (Librium) in the minutes and hours before he arrived at the ER. (R 1262; R456-457). According to Herring, Appellant had finished drinking a bottle of vodka immediately prior to entering Herring's vehicle for the 15-minute trip to the Hospital. (R 1263 ). Appellant later testified, "1 was probably drinking right up till he came. I could have probably been drinking on the way down. I'm not sure.'' (R236). References to " are to the Record on Appeal. Appellant was processed, his personal information, including insurance coverage, was provided. He was admitted into the ER and assigned a bed. Appellant was then examined by the ER doctor (Respondent Chintapalli), and an intravenous line ("IV") was inserted in his arm. He had been punched in the eye in a recent altercation and had swelling of the eye and nose. He was administered a CT scan of his head to assess whether there were any fractures, and his blood was taken for analysis. (R460-46l; Rl313-1315). Appellant had a bruised eye, headache, swelling of his nose, and contusions to his head; the CT scan of his head revealed that he had suffered a displaced fracture of the nose. (R 178-179; R460; R641-642; Rl314 ). The nurse noted that Mr. Kowalski ''took 6-8 capsules of Librium en route to Hospital," had a "heavy" smell of alcohol, his eyes were red, and his neurological status was described as "garbled." (R1315). At 11 :50 a.m., the "clinical impression" was noted as "ETOH Intoxication!Detox." (Rl313-1314 ). Appellant's blood alcohol content ("b.a.c."), analyzed approximately one- half hour after he arrived at the Hospital, was .369 mg/dl (R13 19)- more than four and a halftimes the legal limit for driving in New York. See N.Y. Vehicle & Traffic Law§ 1192. As noted, Appellant had a history of alcoholism and periodic relapses of binge drinking. In fact, he had been admitted in an intoxicated state to this same 2 Hospital approximately one month before. At that time, he had been placed on a 4'one-to-one" watch (R 1453), consistent with the Hospital's written protocol (R 1454-1461 ), because he was intoxicated and exhibiting depression and suicidal ideations and, thus, presented a danger to himself. (R1452-1453 ). After two days at the Hospital on that occasion, Appellant was discharged to his family on November 23, 2006, having been cleared for discharge by a psychiatrist. (Rl453). (Notably, on that prior admission, Mr. Kowalski was considered unable to sign the authorization for treatment and release of information, and the box marked "Incompetent" was checked by the Hospital. (R1186). Yet, on that occasion, Mr. Kowalski had a lower b.a.c. and had ingestedfewer Librium than on the day of the accident, a month later. (Rill 0-1111; Rl452-1453)). On the afternoon of December 20, 2006, Appellant's Hospital medical records were readily accessible to the ER doctor and staff. A review of these records would have revealed this recent history of being placed on a "one-to-one" watch at the Hospital one month earlier, if they had been reviewed any time after his presentation and admittance to the ER. (RIll 0-1111; Rl452-1453 ). On this date, however, the ER doctor and staff did not review any of his past medical records (R423-424, R667-668, R763), nor did they implement the procedures expressly contemplated by the Hospital's written protocols. (Rl454-l462). These protocols should have been followed in order to secure Appellant's safety and 3 prevent him from harming himself or others during the discrete and limited period of time that he remained intoxicated and unable to make rational decisions. Appellant remained in his hospital bed for a period of time. However, he refused to wear the hospital gown provided him or to allow the bed rails to remain upright. He was belligerent and uncooperative. (R633; R646). Shortly thereafter, Appellant announced that he wanted to leave the Hospital. He ripped the IV needle out of his arm. A nurse ran to grab gauze and applied a dressing to stop the resulting bleeding. (R631-632). The ER nurse, Jeanne Vacca, told him that if he wanted to leave he would have to be accompanied by a responsible adult, as (she later testified) he was "probably still intoxicated." (See R643; R646; R686; R688).2 Appellant's friend, Mr. Herring, had left his contact information in case the Hospital staff needed to reach him (Rl262-1263 ); but the ER doctor and staff did not call Mr. Herring or anyone to provide Appellant a safe means home. A few minutes later, Appellant got out of his bed and left the Hospital, alone and on foot. He was reportedly seen, unaccompanied, in the lobby of the Hospital; but no effort was made to see that he returned to the ER or had secured a safe 2 Indeed, Nurse Vacca later admitted under oath: ''yeah, he was probably still intoxicated" at the time she was telling him to stay put in his bed. (R646). Moreover, the ER doctor, Respondent Chintapalli. admitted at deposition that he did not want Appellant to drive because he ··could have been" legally intoxicated at that point. (R52l-522). 4 means of transport home. (R539; R673). The ER doctor had not discharged him from the Hospital (R524-527). Upon finding Appellant's bed empty, the on-duty nurse noted his "'elopement" and promptly advised the ER doctor, Respondent Chintapalli- who testified that he alerted security. (R523). However, the Hospital's head of security admitted that the security department did not search for Appellant, either inside or outside the Hospital. {Rl391; Rl371; Rl402-1403; Rl408). The Hospital's "Incident Report Form'' categorized Appellant's departure, at 3:45p.m. on December 20, 2006, as ''Elopement." (R131 0). "Elopement" is defined by the Joint Commission on Accreditation of Health Care Organizations, Sentinel Events policy, as "unauthorized departure, of a patient from an around- the-e lock care setting." (R 1464) (emphasis added). 3 (Elopement is considered a sentinel event under this policy where it "result[s] in a temporally related death (suicide, accidental death, or homicide) or major permanent loss of function." (R 1464). Unfortunately, that is what happened here.) No one called the police- even though the nurse specifically asked Dr. Chintapalli whether they should call the police to locate and return Appellant 3 Taber's Cyclopedic Medical Dictionary (15th Ed.), at 530, defines '-elope" as follows: "Pert. to a patient, to depart from a hospital, esp. a psychiatric hospital, without permission." 5 because he was still intoxicated and had not yet been discharged.4 Dr. Chintapalli told her, "No." (R602-603; R688). At about 5:30 p.m., Appellant was grievously injured when he was struck by an automobile driven by Defendant John Di Russo, while Appellant was attempting to cross Route 9, a heavily-traveled State road in Poughkeepsie, adjacent to the HospitaL (R1450). Immediately following the accident, Appellant was brought back to the Hospital by ambulance in critical condition. Upon his readmission, Appellant's b.a.c. was measured at a still-very high .350mg/dl- still more than four times the legal limit for driving. (R 183 ). The accident report prepared by the police who had responded to the scene noted that Appellant's "Alcohol Involvement" and ''Pedestrian/Bicyclist; Other Pedestrian Error Confusion" were "Apparent Contributing Factors." (R 1450 ). The report indicates: "Pedestrian intoxicated at time of crash." (R1450 ). 5 4 The nurse testified that she asked Dr. Chintapalli specifically whether the Police Department should be informed of Appellant's elopement and requested to search for him 4"because he was intoxicated, and you know, we hadn't discharged him yet ... " However, inexplicably and unfortunately, Dr. Chintapalli responded, "No." (R602-603; R688). The doctor and nurse both admitted that, on many other occasions involving patients who had eloped, the police had been contacted (R535-538; R691; R 702-703), and patients have been returned to the Hospital. (R602-604). 5 NotabJy, there was no evidence that Mr. Kowalski consumed additional alcohol from the time he left the Hospital to the time he was involved in the accident. Rather, he testified that he just sat down near a dumpster behind a beauty salon. ''Between the pills and alcohol ... I wasn't thinking straight." (R249; R251 ). The Medical Defendants' expert opined that Mr. Kowalski must have consun1ed more alcohol after he left the Hospital because his b.a.c. was still high at 6 The following day, on her day off, the ER nurse called the Hospital, and asked if she should prepare a ''late entry" to be included in Appellant's Hospital record. (R677-678; R680). The emergency room coordinator, Ann Vokes, instructed her to do so. (R680-681 ). The resulting "late entry (addendum)," prepared by Nurse Vacca on her day off, described the incident as follows: Pt was told to stay in the E.R. until his friend came to get him @ this time. He pulled out his IV already. A dressing was applied to his arm by S. Soto, RN. He was told not to leave by myself and Dr. Chintapalli. 1545 when I went to Bed the patient was gone. I went to the ambulance bay and he was not there - I went out to the met area/Fast Track and did not see him. I told Dr. Chintapalli and asked him if he wanted me to call the Town of Poughkeepsie Police to get the patient and he said "No." I told security and the nurse techs and the charge nurse that the patient had gone AWOL. I also told Dr. Neifield. I did not see the patient again after 154 5. Addendum 1545 Turning Point was called, ambulette was coming for patient- pt refused to go- stating "a friend is coming to get me." I told him he had to wait in the ER until his friend came. the time of the accident. This speculative and self-serving opinion was directly refuted by Appellant's expert. (R1284-1286). On this record, it must be held that "[a]n inference that he became entirely sober and then reintoxicated is incredible and baseless." See Fagan v. Atlantic C. L. R. Co., 220 N.Y. 30 1 , 312 ( 191 7). In any event, Respondent Dr. Chintapalli argued in the courts below that the issue was legally immaterial. Under Respondent Chintapalli' s skewed view ofNew York law as to the duty of care owed by health care professionals to their patients. it was totally irrelevant whether Appellant was still intoxicated at the time he left the Hospital on foot! (See discussion, infra, at page 27-28). 7 (R 1318) (emphasis added). 6 Nurse Vacca acknowledged that the last paragraph of the late entry, which includes the words "Addendum 1545," is not in proper temporal order. Significantly, she explained that this last paragraph was also added at the direction of Ann Vokes, the same administrator who had told her to come in and prepare the late-entry. (R699-700). It was, in effect, an addendum-to-the-addendum. (I d.). Asked at deposition why she thought it necessary to come in on her day off to create this "late entry" and "addendum" and add it to Mr. Kowalski's medical record, Nurse Vacca testified, "It should be obvious. Sorry." (R680) (emphasis added). She continued," ... because I was concerned for the patient and because I was concerned for the hospital." (/d.) (emphasis added). Appellant was rendered a quadriplegic on December 20, 2006, and he remains in that condition today. 6 The numbers in the entry refer to the time of day, in military time. 8 PROCEDURAL HISTORY A. Appellant Commenced Suit Appellant commenced this action sounding in negligence and medical malpractice in Supreme Court, Dutchess County, against Respondents St. Francis Hospital and Health Centers, Chandra Chintapalli, M.D., Emergency Physician Services of New York, Inc. (collectively, the "Medical Defendants" or "'Respondents"), and Defendant John Di Russo, the driver of the vehicle that struck him. (See Amended Summons and Complaint, R60-69).7 As against the Medical Defendants, Appellant sought damages on the grounds, inter alia, that the Medical Defendants were negligent and committed malpractice in failing to properly safeguard and protect him and, in particular, by: allowing him to leave the Hospital without supervision while he was still in an irrational condition that manifestly presented a danger to himself and others; unreasonably failing to implement their own written procedures and protocols to secure Appellant's safety during the period of time that he was incompetent due to intoxication; failing to conduct any search for the Appellant outside the Hospital once he absconded on foot; failing to cause security to conduct a search for the Appellant outside of the Hospital; and failing to alert the Town of Poughkeepsie 7 Appellant initially named as an additional defendant T earn Health, Inc. ('~.T earn Health"). However, by stipulation signed by counsel for all parties, all claims against Team Health were subsequently withdrawn and dismissed, with prejudice. (R1570-157l). Accordingly, Team Health is no longer a party to this action or appeaL 9 Police Department of Appellant's elopement from the Hospital, in order to return him to the Hospital or some other safe haven. (See Amended Summons and Complaint, R60-69). B. The Medical Defendants' Motions for Summary Judgment and the Order of Supreme Court Denying the Motions and Directing That the Parties Proceed to Trial Following discovery, the Medical Defendants moved for summary judgment. (R952-1240). Broadly stated, the Medical Defendants argued they were entitled to judgment as a matter of law dismissing Appellant's claims because they had no legal authority -let alone a duty- to restrain Appellant and prevent his leaving the ER once he expressed a desire to leave. They argued that Appellant made an independent decision to leave and that he could not be prevented from doing so, as a matter of law, since he was not "mentally ill" and did not present a danger to himself or others. The Medical Defendants insisted that- since an individual cannot be "'involuntarily confined" solely for the treatment for chronic alcoholism- they lacked any legal authority to prevent Appellant's departure from the Hospital on that particular day, regardless of whether they knew or should have known of his diminished capacity at the time he was permitted to leave the ER, unaccompanied and on foot, in the near vicinity of a busy highway. In a Decision and Order entered June I, 20 II, Supreme Court, Dutchess County (Sproat, J. ), recited the parties' opposing contentions as to the existence 10 and scope of any duty of care, noted the conflicting expert opinions as to Appellant's level of intoxication and capacity upon leaving the ER, and concluded that there were questions of fact sufficient to withstand summary judgment and require a trial. (See R 1 0-19). The court thus denied the Medical Defendants' motions for summary judgment and directed the parties to proceed to trial on Appellant's claims of negligence and medical n1alpractice. (/d.) The Medical Defendants each filed a Notice of Appeal from the Order denying them summary judgment (R2, R4, and R6); and, by subsequent motion before the Appellate Division, Second Department, obtained a stay of the trial, pending their appeal of the Supreme Court Order. (R1578). C. The Appellate Division, Second Department, Reversed and Granted Summary Judgment to the Medical Defendants, Dismissing all the Claims Against the Medical Defendants By Decision and Order dated and entered on May 1, 20 12, the Appellate Division, Second Department, reversed on the law, granted the Medical Defendants' motions for summary judgment, and dismissed the Complaint insofar as it was asserted against them. (See R1576).8 8 The Order thus dismissed all claims and cross-claims against the Medical Defendants - leaving only Mr. Kowalski's Third Cause of Action, sounding in negligence, which was asserted only as against the driver of the automobile, Mr. DiRusso, to be tried. As previously noted, the claims initially asserted against Team Health were withdrawn and discontinued with prejudice by stipulation of the parties. (Rl 570). This Court has jurisdiction over the instant appeal, notwithstanding the pending claim against Defendant DiRusso, pursuant to settled principles of ·•party finality." 1 1 The Appellate Division ruled, in pertinent part, as follows: A person who is brought voluntarily to a medical facility for treatment of alcoholism cannot be involuntarily confined solely for that treatment (see Mental Hygiene Law§ 22.09[d]; Lawlor v Lenox Hill Hosp., 74 AD3d 695, 696; Mottau v State of New York, 174 Mise 2d 884, 888; Matter of MichaelS., 166 Mise 2d 875, 878). Here, the defendants Chintapalli, St. Francis, and EPS established, prima facie, via their respective motions for summary judgment, that they lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment. ln opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the respective motions of ... [the Medical Defendants]. See Decision and Order at p. 2 (Rl577) (emphasis added). D. This Court Granted Appellant Leave to Appeal The Appellate Division Order was dated and entered in the office of the Clerk of that court on May 1, 2012. (Rl576-1577). Appellant was first served with the Order, with Notice of Entry, on May 3, 2012, by First Class Mail. Appellant timely served a motion for leave to appeal on June 6, 2012 i.e., within 35 days of the date that he was first served with the Order, with notice of entry. See CPLR §§ 5513[b]; 2103[b][2]; 2103[b][f][l].9 By Order decided and entered on August 30, 2012, this Court granted Appellant's motion for leave to appeal. (R1575). 9 Proof of timeliness was submitted in support of Appellant's motion for leave to appeal, and those documents remain on file with this Court. 12 ARGUMENT POINT I THE MEDICAL DEFENDANTS HAD A COMMON LAW DUTY TO SAFEGUARD AND PROTECT APPELLANT, MEASURED IN PART BY REFERENCE TO HIS CAPACITY TO PROVIDE FOR HIS OWN SAFETY The Medical Defendants had a duty to temporarily restrain or otherwise safeguard Mr. Kowalski- an extremely intoxicated patient who was manifestly unable to make reasoned decisions for his own safety, and the safety of others - for the limited period of time that they knew, or reasonably should have known, that he was incapacitated by alcohol, or until a responsible adult could come to get him and accompany him home. As discussed more fully below, this duty arose from the unwavering and steadfast common law principle, which has long-held that medical professionals must exercise reasonable care to protect the patients within their care. The scope of this common law duty is measured, in part, by reference to the capacity of the patient to provide for his own safety. A. The Common Law of New York State Recognizes the Existence of a Duty Owed by Doctors and Other Health Care Professionals to the Patients Within Their Care A court must first determine as a matter of law whether a duty existed before assessing whether the duty was breached in a particular case. See, e.g., Tagle v. Jakob. 97 N.Y.2d 165 (2001); Di Ponzio v. Riordan, 89 N.Y.2d 578,583 (1997). 13 ·'The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the court." Di Ponzio, 89 N.Y.2d at 583. In making this assessment, the courts must "'look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks." /d. at 583 (citations omitted). As this Court observed in Tagle v. Jacob: "Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally." 97 N.Y.2d at 168. Here, there can be no question but that the Medical Defendants owed Appellant a duty of care on December 20, 2006. Indisputably, he was their patient on that date, he was admitted to the ERin a highly intoxicated state, his insurance and personal information was obtained, and he was assigned an ER bed. He was accepted for assessment and immediate care in the ER. An IV needle was inserted in his arm, and various tests were ordered and undertaken. (R178-l79; R4l6; R460-461; R641-642; R 1313-1315). The ER staff was making arrangements for him to be transferred to a detoxification facility; but he was still unquestionably a patient in the ER. He had not been discharged, and the ER doctor and staff wanted him to remain in bed. (R524-527; R643; R645-646; R688). 14 These facts are undisputed, and they certainly establish the requisite relationship -''doctor- patient" and "hospital-patient" -giving rise to a duty of care. Indeed, the Court need look no further than the long-standing common law principle that "[a] hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety." N.X v. Cabrini Medical Center, 97 N.Y.2d 247,252-53 (2002); see also, Santos v. Unity Hospital, 301 N.Y. 153, 156 (1950); Zophy v. State, 2 7 A.D .2d 414, 416 (4th Dep 't. 1967), affirmed no opinion 22 N.Y.2d 921 (1968); White v. Sheehan Memorial Hosp., 119 A.D.2d 989 (4th Dep't. 1986); Horton v. Niagara Falls Memorial Med. Center, 51 A.D.2d 152 (4th Dep't. 1976). To be sure, a hospital is not to be considered an "insurer'' of its patients' safety. See Cabrini, 97 N.Y.2d at 253. Nevertheless, a hospital and its staff owe a duty "to take reasonable care to protect its patients from injury." Freeman v. St. Clare's Hosp. & Health Center, 156 A.D.2d 300, 300-301 (1st Dep 't. 1989). The scope of that duty is ''circumscribed by those risks which are reasonably foreseeable." Cabrini Med. Center, 97 N.Y.2d at 252. As a general matter, foreseeability is understood to encompass risks that are known, or reasonably should be known, to exist under the circumstances. See, e.g., Sanchez v. State, 99 15 N.Y.2d 247, 254-55 (addressing foreseeability in the context of a claim by an inmate against the State for injuries sustained at the hands of another inmate). 10 Where an institution is involved - such as a hospital, as in this case, or a prison, as in Sanchez v. State- the assessment of foreseeability of harm involves an analysis of what risks were known, or reasonably should have been known, ''based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks." Id. at 254 (emphasis added). Moreover, ''observations and information known to or readily perceivable by hospital staff that there is a risk of harm to a patient under the circun1stances can be sufficient to trigger the duty to protect." See Cabrini Med. Center, 97 N.Y.2d at 255 (emphasis added). The patient's ability to provide for his or her own safety is also critical in determining the degree of care owed by a hospital to its patient. See, e.g., Zophy, 27 A.D.2d at 416 ("The hospital owed a duty to exercise 'reasonable care and diligence not only in treating but in safeguarding a patient, measured by the capacity of the patient to provide for his own safety."' (citations omitted) (emphasis added)); see also, Freeman v. St. Clare's Hosp., 156 A.D.2d at 300 (where the plaintiffs injuries were the result of an attempted rape by another IO '"The requisite foreseeability is as to a "risk of harm,' ... or 'injury-producing occurrence .• , Sanchez, 99 N. Y.2d at 255. "The exact extent of the injury need not be foreseeable so long as some type of injury may be reasonably anticipated." Freeman v. St. Clare 's Hosp. & Health Center, 156 A.D.2d at 300-301. 16 patient while the plaintiff was in multiple restraints and unsupervised in the emergency room, and the defendant hospital was on notice that the other patient was aggressive, the court ruled that the hospital had a duty to take reasonable steps to safeguard the plaintiff and that "[t]he degree of care is commensurate with a patient's capacity to provide for her own safety." (Emphasis added)). B. The Duty of Care Owed to Severely Intoxicated or Otherwise Incapacitated Persons Even outside the special relationship of"doctor-patient" or "hospital- patient," numerous other New York decisions acknowledge the special duty of care that is owed to intoxicated or otherwise incapacitated individuals by persons who voluntarily undertake to care for them or to take them into custody. See, e.g., Parvi v. City of Kingston, 41 N.Y.2d 553, 559 ( 1977); Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dep't. 1997). For example, in Parvi, this Court recognized that police officers owe a common law duty to safeguard intoxicated individuals in their custody; and that duty is not discharged by placing them in a position of equal or greater periJ than that in which they were found. 41 N.Y.2d at 559-560. The Court addressed the issue of foreseeability of harm as follows: We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 3 50 feet of a superhighway, whose traffic noises 17 were sure to make its presence known, might wander onto the road. To state the question is to answer it. Parvi v. Kingston, 41 N.Y.2d at 560 (emphasis added). So it was here. The risk of harm to Appellant Kowalski - in allowing him to elope from the ER in close proximity to a heavily-traveled state highway, while in an extremely intoxicated state - would have been obvious. Once the Medical Defendants accepted him as a patient in their ER and assumed responsibility for his care, they owed him a duty to exercise reasonable care to safeguard him from foreseeable harm; and this duty could not be discharged by allowing him to wander, on foot and alone, out of the ER, into a position of greater peril. See id. Likewise, in Walsh, the Appellate Division, Fourth Department held that there was a question of fact sufficient to withstand a motion for summary judgment in a wrongful death action, where it was alleged that a police officer was negligent in removing the plaintiffs decedent- an intoxicated woman from the automobile in which she had been a passenger, and "leaving her stranded, in a visibly intoxicated state, on a dark road within 35 feet of railroad tracks, at 5:30 in the morning." Walsh, 237 A.D.2d at 947-48. Once again, having assumed control over the plaintiffs decedent, the officers were obligated to exercise due care to safeguard and protect her. See id. This duty of care is not fulfilled "by placing the helpless person in a position of peril equal to that from which he was rescued." 18 See id. at 948, quoting Parvi, 41 N.Y.2d at 559 and Restatement (2d) Torts,§ 324, comment g. Reference to a federal district court decision in Ayala v. Mohave County, Arizona, 2008 U.S. Dist. LEXIS 93418 (Dist. of Ariz. 2008), is also useful. That case involved facts similar to those involved in Walsh -the defendant officers left the passenger of an impounded vehicle to walk along a dark, rural highway, late at night, in an intoxicated condition, and she was struck and killed by a passing motorist a short distance from the location of the traffic stop. !d. at * 1-6. The court denied the defendants' motion for summary judgment (except as to certain claims not relevant here), observing, in pertinent part: "The dangers of remote, unlit highways to pedestrians who have been drinking are obvious. . .. No reasonable officer would believe that the law permits the abandonment of a person known to have been drinking along the shoulder of an extremely dark highway, miles from the next safe haven." See id. at* 18. The cases discussed above are consistent with the principle that one has the duty to exercise due care when action is voluntarily undertaken on another's behalf -even when no duty was originally owed to the other party. See Parvi, 41 N.Y.2d at 559; see also, Restatement (2d) of Torts,§ 324, which provides: One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to 19 exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him. Restatement of the Law (2d) Torts,§ 324, cited with approval in Walsh v. Town of Cheektowaga, 237 A.D.2d at 948; see also, Fagan v. Atlantic Coast Line Railroad Co., 220 N.Y. 301, 307 ( 1917) (addressing the duty of a common carrier to an intoxicated passenger, this Court stated: "The defendant was under the special duty, with regard to the intestate by reason of his insensible condition, known to the conductor, of exercising such care, precaution and aid as were reasonably necessary for his safety, and of bestowing upon him any special care and attention beyond that given to the ordinary passenger which reasonable prudence and care demanded for his exemption from injury."). In view of the above-cited cases and principles all of which involve relationships more remote and far less personal than a "doctor-patient" or "hospital-patient" relationship- the Medical Defendants must be held to have had a special duty to protect and safeguard the intoxicated Appellant, once he was a patient in their care. They could not discharge this duty simply by looking the other way and leaving him all alone, when he wandered on foot out of the ER, into a position of much greater peril. 20 Reference to this Court's decision in N.X v. Cabrini Medical Center, 97 N. Y .2d 24 7, is instructive. Although the facts of Cabrini are unlike those presented here, the Court's analysis of the scope of a hospital's duty to protect its patients, particularly those who are helpless to protect themselves, is entirely pertinent to this case. ln Cabrini, the plaintiff brought suit for injuries she suffered at the hands of a hospital physician, who sexually assaulted her while she was recovering from vaginal surgery. The assault occurred in the post-operative room at the defendant hospital, despite the presence of several nurses in the room, in close proximity to the plaintiffs bed. /d. at 250, 253-254. The physician was unknown to the patient and to the nurses in the room, yet no one took any steps to learn his identity or his reasons for approaching the helpless plaintiff until after the assault was committed. Moreover, the nurses made no effort to prevent or interrupt the assault, even though the plaintiff claimed that she had cried out in pain and distress. See id. ln the ensuing action, this Court accepted that the hospital may not have reasonably foreseen the assault by a physician with no known history of sexual misconduct. /d. at 253. However, the Court ruled that, "under the settled hospital- patient duty equation," the hospital could still be held liable for its staff members' failure to protect the patient from "actually observed or readily observable 21 misconduct committed in the very presence of hospital employees." I d. at 252-253 (emphasis added). In language that is most relevant to this appeal, the Court stated as follows: We simply hold that observations and information known to or readily perceivable by hospital staff that there is a risk of harm to a patient under the circumstances can be sufficient to trigger the duty to protect. This commonsense approach safeguards patients when there is reason to take action for their protection and does not burden the practice of medicine or intrude upon the traditional relationship between doctors and nurses (see, Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 265, rearg denied 22 NY2d 973). /d. at 255 (emphasis added). This same "commonsense approach" applies to this case. The Medical Defendants must be held to have had a duty to protect Appellant Kowalski from the risks of harm that were apparent, based upon "observations and information known to or readily perceivable by hospital staff," on the afternoon of December 20, 2006. See id. The Appellate Division below erred in deciding this case as a matter of law, dismissing the Complaint as against the Medical Defendants on the basis that "they lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment." (App Div Dec & Order, Rl577). Whether the Medical Defendants' acts and omissions on December 20, 2006 - in failing to safeguard the intoxicated Appellant and prevent his elopement- were reasonable 22 under the circumstances at the very least presents a question of fact for the jury. See, e.g., Parvi v. Kingston, 41 N.Y.2d 553, 560 (1977) ("To be sure, much has to depend on what the jury finds to have been the state of his sobriety and the nature of the surrounding physical and other circumstances. But traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict."); see also, Santos v. Unity Hospital, 301 N.Y. at 156 (in a case involving a claim against a hospital for failure to protect the plaintiff's decedent, who was left unattended and jumped to her death from an unsecured window during a sudden episode of psychosis brought on by labor and childbirth, this Court held that it was proper to submit to the jury ~~the question whether the defendant hospital was negligent when in the decedent's exigency it withdrew from her all personal care without securing the window through which she then and there helplessly fell to her death."). C. Appellant's Voluntary Intoxication Does not Shield the Medical Defendants From Liability for Their Failure to Safeguard him It should be noted that the Medical Defendants are not relieved, or otherwise absolved, of liability simply because Appellant voluntarily consumed excessive amounts of alcohol and Librium before arriving at the Hospital. In other words, the Medical Defendants may not escape liability for failing to protect their patient by arguing that his voluntary intoxication was the proximate cause of his injuries. 23 In the courts below, the Medical Defendants made much of the fact that Appellant chose to drink and take Librium of his own free will. They pointed out that Appellant had attempted detoxification in the past, only to relapse as a result of his alcoholism. They argued that people in this Country are free to drink to excess if they so desire, and they insisted they could not force Appellant to participate in a detoxification program if he did not wish to do so. In short, the Medical Defendants implied that it was not their acts and omissions, but Appellant's poor choices and chronic alcoholism, that caused his injuries on the afternoon of December 20, 2006. See, e.g., Respondent Chintapalli's App Div Brief at p. 9 (stating, "Kowalski - a free man - could do what he pleased. He was free to drink- and free to make terrible mistakes."). This argument is merely a distraction. Although it is undisputed that Appellant struggled with alcoholism and had attempted detoxification in the past, these facts did not diminish the existence or scope of the Medical Defendants' duty of care to Appellant- their patient- on the afternoon of December 20, 2006. Quite the contrary. This Court addressed and rejected this precise argument in Parvi, reasoning as follows: [A] word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant's argument, that the intoxication was itself the proximate cause ofParvi's injury as a matter of law, 24 would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. lt would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable .... For it is the very fact of plaintiffs drunkenness which precipitated the duty once the officers made the decision to act. Parvi, 41 N. Y .2d at 560 (citations omitted) (emphasis added). Likewise, in Fagan v. Atlantic C. L. R. Co., 220 N.Y. 30 l ( 191 7), which involved the duty of a common carrier to an intoxicated patron, this Court stated: "The care which [the defendant railroad] was bound to exercise with respect to [the intoxicated patron's] safety would have reference to his known condition and the situation as a whole. The fact that the condition was self-imposed does not mitigate the duty." /d. at 307 (emphasis added). Here, too, it was Appellant's state of extreme intoxication that triggered a special duty on the part of the Medical Defendants to safeguard and protect him, once he was a patient in their care. It was his intoxication- and his apparent inability to protect himself- that made him vulnerable; and it was his intoxication that made the risk of harm all the more foreseeable. See Parvi, 41 N.Y.2d at 560. 25 POINT 11 THE APPELLATE DIVISION ORDER CARVES OUT AN IMPERMISSIBLE EXCEPTION TO THE COMMON LAW DUTY OF CARE OWED BY HEALTH CARE PROVIDERS TO THE PATIENTS WITHIN THEIR CARE By granting summary judgment to the Medical Defendants and holding that they had no authority (let alone duty) to restrain the intoxicated Appellant in the ER, even temporarily, for his own safety and the safety of others, the Appellate Division, Second Department, has effectively carved out an impermissible and dangerous exception to the above-described standards of care for intoxicated individuals, such as Appellant, who are, or may be, suffering from alcoholism. As discussed below, the Appellate Division's overly narrow focus on Appellant's history of alcoholism as a basis for granting summary judgment to the Medical Defendants was improper and creates a harmful precedent for future cases. A. The Statutory Standards for Involuntary Commitment of the Mentally Ill, Pursuant to Mental Hygiene Law Article 9, are Immaterial to the Scope of the Medical Defendants' Duty of Care In the courts below, the Medical Defendants insisted that, since alcoholism is not considered a "mental illness'' under Article 9 of the Mental Hygiene Law C'MHL "), Appellant could not be retained in the Hospital against his will, even temporarily i.e., for the limited period of time that he was intoxicated and 26 incompetent to make decisions consistent with his own health and safety, and that of others, or until he could be turned over to the care of a friend or relative. According to the Medical Defendants, it is "only a mentally ill person" who may be so restrained. Thus, they argued, in the absence of"mental illness," a patient may not be restrained, even temporarily, regardless of whether he is so incapacitated by alcohol that he poses a substantial threat of harm to himself or others. 11 (See Chintapalli App Div Brief at Point II; see also Reply Affirmation of Richard A. Lerner, counsel to Dr. Chintapalli, dated January 4, 2011 ("Lerner Affirm."), R 14 78-1491 ). The Medical Defendants insisted in the courts below that they simply "had no duty to prevent Kowalski from leaving; once he stated that he wanted to leave, the duty to him ceased, because we live in a free country." (See~ 9 of Lerner Affirm., R1480) (emphasis added). In advancing this novel argument, Dr. Chintapalli 's counsel observed that alcoholics are free to drink and free to refuse medical treatment. (See~ 4 of Lerner Affirm., R14 79). Indeed, counsel went so far as to assert that it was "immaterial" that Appellant was extremely and visibly intoxicated; that it was "immaterial" that his friend saw him finish a bottle of vodka in the minutes before arriving at the hospital; and that it was irrelevant that II See Chintapalli Brief, p. 6 (emphasis added), stating: "40nly a mentally ilJ person who poses an imminent and substantial threat of harm to himself or other may be involuntarily confined." 27 Appellant was bleary-eyed with garbled speech, sounded agitated at 3:30 pm, and was belligerent just before eloping from the ER. (See~ 2 of Lerner Affirm., R 1478). 12 In concluding as a matter of law that the Medical Defendants "lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment" (R1577), the Appellate Division, Second Department erroneously accepted the Medical Defendants' argument that, in order for a physician to take steps to restrain and safeguard an extremely intoxicated individual even temporarily, the patient must first qualify as "mentally ill" under the Mental Hygiene Law. (See~~ 14-33 of Lerner Affirm., R1483-1491 ). Yet, this cannot possibly represent the law of the State of New York. There is no legitimate support in existing case law or statute for the proposition that the standards governing involuntary confinement of a mentally ill patient under MHL Article 9 are to be utilized for determining whether, in accordance with common law, an individual incapacitated by alcohol may be detained in the hospital, monitored for a brief period of time, and released only upon regaining his faculties 12 Throughout his Brief before the Appellate Division, Dr. Chintapalli 's counsel sought to diminish Mr. Kowalski's arguments by means of sarcasm and mockery. For example, Chintapalli's counsel posited that Mr. Kowalski could not have been prevented from walking out of the ER because '~walking while intoxicated" is not a crime in this country. (See Chintapalli App Div Reply Brief at p. 18, n. 3 ). Of course, this '~straw man'' argument in no way addresses or undermines Appellant's claims against the Medical Defendants, which rest upon the common law standards of care owed by health care providers to intoxicated patients within their care. (See Point L, supra). 28 or to the care of a friend or relative. Rather, as discussed at length in Point I supra, the law of the State ofNew York has a well-developed body of cases establishing and articulating the duty of care owed to patients, particularly to those who are extremely intoxicated or otherwise incapacitated, including those who may be suffering from alcoholism. Contrary to the Medical Defendants' arguments and the Appellate Division holding, the Medical Defendants' duty of care to Appellant was not defined (or limited) by the provisions of the Mental Hygiene Law. Appellant does not claim that he was "mentally ill," and his claims do not presume that he should have been treated for his alcoholism by involuntary commitment. 13 Appellant was not the subject of an ''involuntary confinement" proceeding with the requisite certification, hearing and notice provisions under Article 9 of the MHL nor should he have been. Indeed, the Appellate Division's use of the words "confine" and "'involuntary confinement" in the Order appealed from reflects a fundamental misapprehension of Appellant's claims. (R1577). Rather, Appellant contends that, on the afternoon of December 20, 2006, while he was a patient at the Hospital and in the care of the Medical Defendants, 13 In that regard, an involuntary confinement proceeding under the MHL may result in confinement of a patient of up to 60 days, which necessarily implicates due process concerns. Conversely, no substantial curtailment of a patient's liberty is implicated when a medical professional requires a severely intoxicated plaintiff to wait inanER until he regains his faculties, or insists that he on]y leave the ER in the care of a friend or family member who will be responsible for him. 29 his ability to make rational decisions was temporarily (albeit severely) compromised by alcohol and medication, such that the Medical Defendants knew, or reasonably should have known, that he would present a danger to himself and others if allowed to leave the ER, alone and on foot in the near vicinity of a heavily-traveled state highway. See cases discussed in Point I, supra. Regardless of whether Appellant was an alcoholic, the Medical Defendants had a common law duty to temporarily detain and safeguard the intoxicated Appellant until such time as he no longer presented a risk of harm to himself or others, or at least until he could be released to someone who would be responsible for getting him safely home (such as Appellant's friend, who brought Appellant to the ER and left his contact information with the ER staff). If the Appellate Division decision is allowed to stand, it will leave a gaping hole in the common law duty of care owed by physicians to their patients - a hole into which persons temporarily incapacitated by alcohol and/or medications could unwittingly fall, just by dint of the fact that they are or may be perceived as suffering from alcoholism. New York law cannot countenance such a result. Persons suffering from alcoholism have a disease and they are entitled to the san1e level of treatment and protections as others. As human beings, they deserve to be 30 treated with respect and dignity, regardless of their disease. 14 B. The Appellate Division's Citation to Mental Hygiene Law§ 22.09 as a Basis to Grant Summary Judgment Also Ignores a Doctor's Common Law Duties to the Patients Within his Care The Medical Defendants' contention that only a ''mentally ill" individual may be temporarily restrained by a hospital is further belied by the plain language ofMHL § 22.09, pursuant to which the Legislature expressly addressed "Emergency services for persons intoxicated, impaired, or incapacitated by alcohol and/or substances.'' See also, MHL Article 22, "Chemical Dependence Programs, Treatment Facilities, And Services." MHL § 22.09 provides that, when such an individual is incapacitated to the degree that there is "a likelihood to result in ham1," he may be retained for emergency treatment for up to 48 hours or until he is no longer incapacitated by alcohol or drugs. See MHL § 22.09 (b) - (e). t5 14 Remarkably, Dr. Chintapalli testified that he did not know, until the day of the deposition, that Mr. Kowalski was a quadriplegic. (R482). Further, he testified that he had never asked any questions or consulted anyone about Mr. Kowalski's condition when he was brought back to the ER after the accident, even though he had heard Mr. Kowalski had been hit by a car and seriously injured. (R497 -498). He also testified that he did not relay any information to the treating doctors or do anything at all to involve himself in Mr. Kowalski's post-accident care. (R498). lt is respectfully submitted that the doctor's indifferent and disinterested attitude regarding his own patient's welfare, following a devastating accident, reflects the indifferent and callous manner in which the ER doctor responded to Appellant's elopement just a few hours before. 15 MHL § 22.09 ( l) provides that an "intoxicated or impaired person" is one "whose mental or physical functioning is substantially impaired as a result of the presence of alcohol and/or substances in his or her body." An Hincapacitated" individual is a person whose judgment is so impaired that he is "'incapable of realizing and making a rational decision with respect to his or 31 This statute implicitly refutes the Medical Defendants' arguments about the lesser duty of care owed to an intoxicated individual. MHL § 22.09 recognizes, quite plainly, that there are circumstances when an intoxicated individual may properly be detained in a hospital for a reasonable period of time for his own safety and/or the safety of others. Although the statute specifically addresses the temporary retention of intoxicated individuals who are brought into the hospital by police over their objections, there is no logical reason why the public policy reflected in the statute - and in the common law- should not apply equally to individuals who arrive at the ER voluntarily, but subsequently attempt to leave while still incapacitated by alcohol. Appellant referred to this statute in the courts below to demonstrate the fallacy of the Medical Defendants' reliance upon MHL Article 9 and its strict standards for involuntary confinement of the "mentally ill." See Appellant's App Div Brief at Point III. More specifically, Appellant pointed out that MHL § 22.09 unequivocally evidences the public policy of the State, which is to protect individuals who are incapacitated by alcohol (and to protect the public) by her need for treatment." MHL § 22.09 (2). The phrase •'likelihood to result in harm" or Hlikely to result in harm" is, in turn, defined in the statute as a '•substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself." !d. § 22.09 (3)(i) (emphasis added). 32 establishing a statutory framework for emergency observation and care, even over the intoxicated patient's objections. The Appellate Division below erred in citing to MHL § 22.09 as a basis to grant summary judgment to the Medical Defendants. See Dec & Order at p. 2, R 1577. The Appellate Division failed to recognize that the Medical Defendants' common law duty to safeguard an incapacitated patient was not diminished by the statute which was plainly designed to provide added protections to medical professionals against claims of unlawful detention by persons brought in for emergency treatment. In creating this statutory protection, the Legislature plainly did not announce or otherwise create a new standard of care, nor did it abrogate the existing common law duty of care. Rather, a doctor's duty to safeguard incapacitated patients within his care preexisted and survives the statute and emanates from the common law. See generally, McKinney's Statutes§ 30l(a) ("The Legislature in enacting statutes .is presumed to have been acquainted with the common law ... "). However, in the courts below, the Medical Defendants argued that the temporary retention contemplated by MHL § 22.09 is permissible only when an intoxicated individual is brought, over objection, to the hospital by the police or other public safety officer. (See Lerner Affirm., R1483-1484; see also, Chintapalli App Div Brief at pgs. 12-13; Chintapalli App Div Reply Brief at pgs. 17-19). In 33 other words, according to the Medical Defendants' narrow and incorrect interpretation of the statute and the common law, an intoxicated patient (such as Appellant) who initially presents himself to the Hospital on a voluntary basis may not be temporarily restrained thereafter if he indicates a desire to leave while still incapacitated by alcohol, unless it can be shown, by clear and convincing evidence, that he is "mentally ill" and likely presents a danger to himself or others; whereas, an intoxicated patient who is brought to the hospital involuntarily, by the police or other peace officer, may be restrained by the hospital for a reasonable period of tin1e, against his will, for his own protection or the protection of others, even without a demonstration of''mental illness." See id. l6 Taking the Medical Defendants' argument to its logical conclusion, an ER doctor in New York State would have no choice but to allow a severely intoxicated patient to walk out of the emergency room - and potentially get behind the wheel of an automobile or, as here, stumble into traffic on a busy highway- simply because the patient initially presented himself at the ER voluntarily. An ER doctor 16 In making this argument, the Medical Defendants disregarded the clear language and import of the MHL § 22.09 and proposed a requirement that there be '•clear and convincing evidence'' that '~the [incapacitated individual] is both mentally ill and poses an imminent substantial threat to himself or others" before he can be detained, even temporarily. See Chintapalli App Div Brief, p. 13, n. 5. Yet, neither the statute (MHL § 22.09), nor the common law impose such a requirement where the detention is only temporary and designed to protect and safeguard an intoxicated patient for the limited period of time that he is incapacitated. It is only by reference to MHL Article 9, relating to the involuntary commitment of the mentally ill, that the Medical Defendants can advance this argument. However, as already discussed, MHL Article 9 is irrelevant to this case. 34 would only have the power to temporarily detain such a patient for his own safety and the safety of the public if the patient had initially arrived at the ER involuntarily- i.e., in the back of a police car. This result defies logic and common sense and yet it is precisely the result that the Appellate Division Order fosters by citing to MHL § 22.09 as a basis to grant summary judgment. POINT III THE CASES CITED BY THE APPELLATE DIVISION ONLY EXACERBATE THE ERROR AND DEEPEN THE CONFUSION REGARDING THE PROPER STANDARD OF CARE The Appellate Division erroneously relied upon the decision in Lawlor v. Lenox Hill, 74 A.D.3d 695 (1st Dep't.), lv denied 15 N.Y.3d 713 (2010), as a basis for granting summary judgment to the Medical Defendants. There, the plaintiff sought damages for a head and brain injury he suffered when he experienced a seizure and fell to the ground, banging his head. The seizure, which occurred approximately one month after his last discharge from the hospital, was apparently a consequence of his chronic alcoholism. The plaintiff argued that the defendant had committed malpractice by discharging him from the hospital, rather than evaluating and providing treatment for his alcoholism through involuntary commitment. See id. at 695. The court in Lawlor rejected the plaintiffs claims, ruling that a person cannot be involuntarily confined under Article 9 of the Mental Hygiene Law solely 35 for the treatment of alcoholism. /d. (citing MHL §§ 9.27, 9.39 and Matter of MichaelS., 166 Misc. 2d 875 (Sup. Ct., West. Cty. 1995)). In addition, the court concluded that there was insufficient evidence that the defendant's actions were the proximate cause of the plaintiffs fall and resulting brain damage, which occurred a full month after his last discharge from the hospitaL See id. The facts and holding in Lawlor are distinguishable from this case in every material respect. First, the plaintiff in Lawlor was injured a month after his discharge from the hospital; and the injury was a result of a seizure caused by his alcoholism. Here, by contrast, Appellant's injury occurred less than two hours after he left the Hospital; and Appellant's injury was the immediate and direct result of being permitted to elope, on foot, from the ER, in close proximity to a busy highway, while in an inebriated state. Furthermore, in Lawlor, the plaintiffs claims were based upon the theory that he should have been involuntarily committed or provided treatment for his chronic alcoholism over his objection. Here, on the other hand, Appellant's claims rest upon the contention that, in the exercise of ordinary care and due caution, the Medical Defendants should have safeguarded and monitored him for his own protection (and that of others), only until such time as his faculties returned or until a responsible adult was available to accompany him safely home. There is no 36 claim that Appellant should have been involuntarily confined for treatment of his alcoholism under MHL Article 9. There was also no allegation that the plaintiff in Lawlor had diminished capacity (or was a threat to himself or others) at the time that he was discharged from the hospital. In fact, the Lawlor transcript (reproduced at R 150 I) shows that the plaintiff had been hospitalized for three days and was allowed to leave the hospital only after being examined by one or more psychiatrists, who specifically determined that he had "decisional capacity ... " (R150 I). Here, as discussed above, Appellant Kowalski was not specifically screened for decisional capacity before he left the Hospital, and he was never discharged. Lawlor thus has no relationship to the present case, and the Appellate Division's citation to Lawlor in the Order appealed from creates harmful precedent, as it suggests that the statutory standards for involuntary confinement set forth in MHL Article 9 dictate whether an intoxicated individual (particularly one suffering from alcoholism) can be temporarily detained in the hospital, for his or her own safety and the safety of others, for the limited period of time that he or she is incapacitated and unable to make rational decisions. The Appellate Division also relied upon the decision in Mottau v. State of New York I74 Misc.2d 884 (Ct. of Claims I997), in granting summary judgment to the Medical Defendants. That decision is similarly inapposite. Mottau 37 involved a claim against an alcohol treatment center, rather than a doctor and a medical facility. The plaintiff in Mottau, who was an alcoholic, was discharged from the treatment program because he showed up drunk. A couple of hours after the plaintiff refused the center's efforts to assist him in getting to a local rescue mission, an alcohol crisis center, or home, he was walking on a dark street in the rain and was struck by a car. See id. at 885. The court dismissed the plaintiffs ensuing action against the alcohol treatment center, ruling that the center had no duty to protect him from the injuries he had sustained. In so ruling, the court noted that the center did not have the staff to provide adequate supervision and it was not equipped to render medical treatment; thus, "it was not suitable to provide care for an intoxicated individual." /d. at 887. Under these circumstances, the court held that any duty owed by the center was satisfied by its repeated offers to assist the plaintiff in getting to a place where he could sober up- which offers the plaintiff had declined. /d. at 886-87 (citing the predecessor statute to MHL § 22.09). The Mottau court also found it significant that the treatment center had expressly limited the extent of its relationship with the individuals in its program by advising them, in advance, that they would not be permitted to participate in the program if they were caught drinking~ The court stated: "To impose a duty here 38 would unfairly expand the relationship from treatment provider to caretaker." See id. at 886. Critically, in so ruling, the Mottau court contrasted the alcohol treatment center to a medical facility, where a duty to safeguard the patient would necessarily be present. The court expressly observed that a medical facility, such as a hospital, would have a duty "to exercise reasonable care to protect a patient from himself." /d. at 886 (emphasis added). The court explained that such a duty arises from the relationship between parties, such as the "doctor-patient" relationship, and that the duty is based on one party's specialized knowledge or ability to control circumstances which may well affect the well-being of the other. See id. The analysis in Mottau actually supports Appellant's claim, since, here, Appellant was a patient in the care of a doctor in a hospital fully equipped to safeguard an intoxicated patient. Mottau expressly acknowledges a medical facility's duty to safeguard patients whose ability to reason is impaired- as was the case here. Accordingly, the Appellate Division's citation to Mottau as a basis to grant summary judgment to the Medical Defendants in this case was erroneous and based upon a misapprehension of the standard of care owed by doctors and health care professionals to temporarily incapacitated patients within their care. 39 POINT IV THE APPELLATE DIVISION ERRED IN DECIDING THIS CASE AS A MATTER OF LAW, RATHER THAN ALLOWING A JURY TO CONSIDER THE REASONABLENESS OF THE MEDICAL DEFENDANTS' ACTS AND OMISSIONS ON THE DATE IN QUESTION The record contains ample evidence to support an inference that the Medical Defendants knew, or should have known, of the risk of harm to Appellant on the date in question- such that their acts and omissions in failing to take reasonable steps to safeguard and protect him from that harm constituted negligence, and/ or violated the minimum standards of care of the medical profession. Under these circumstances, the Appellate Division should not have dismissed Appellant's claims as a matter of law; rather, questions regarding the reasonableness of the Medical Defendants' conduct should be decided by a jury. See, e.g., Parvi v. Kingston, 41 N. Y .2d at 560 (observing that ''traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict"); see also, Santos v. Unity Hospital, 30 I N.Y. at 156 (question of hospital's negligence in failing to safeguard and protect the plaintiff's decedent was properly submitted to the jury). 40 A. There was Ample Evidence to Support a Factual Inference That the Medical Defendants Breached Their Duty of Care to Appellant In opposition to the Medical Defendants' motions for summary judgment, Appellant presented evidence and expert opinions to demonstrate that, during the time he was in the Medical Defendants' care, his extreme intoxication left him utterly and obviously unable to make reasoned decisions, consistent with his own safety and the safety of others. A jury could readily infer that the Medical Defendants knew, or should have known, based upon their own "observations and information known to or readily perceivable by hospital staff' on December 20, 2006, that allowing him to elope, alone and on foot, in the near vicinity of a heavily-traveled state highway would pose a risk of serious harm to him. See Cabrini, 97 N. Y .2d at 25 5. A jury could further conclude that, under these circumstances, a duty to protect was triggered, and that the Medical Defendants breached that duty of care by failing to take reasonable steps to safeguard and protect Appellant from such foreseeable harm. See id. For example, the record reflects that when Appellant and his friend, Jason Herring, had arrived at the ER just a few hours before, they informed the ER staff that Appellant had consumed 8 capsules ofLibrium (many times more than the prescribed 25 mg. dose), as well as a large quantity of vodka, within a very short time before his arrival at the Hospital. (R171-172; R457). Appellant's eyes were blood-shot, his speech was slurred, and his neurological state was described as 41 ~ 4garbled." (Rl72). This information was specifically noted in Appellant's chart. (R l 71 -1 7 2). Moreover, Appellant submitted expert testimony that the simultaneous ingestion of large quantities of alcohol and excessive amounts of Librium (a benzodiazepine) would have slowed his body's ability to metabolize the alcohol and made him incompetent to make informed and reasoned decisions. (Rl284- 1285). Indeed, the Medical Defendants' own witnesses admitted as much in deposition testimony: Dr. Chintapalli initially stated that he knew the interaction between Librium and alcohol back in 2006, but he couldn't recall the information on the date of his deposition. (R478-480). Later, however, he conceded that a patient "can be more drowsy or more intoxicated by taking the benzodiazepine and alcohol together." (R506). Nurse Vacca testified the combination could result in sluggishness. (R617-619). Nurse Soto admitted it could impair judgment; and opined that it was a "dangerous, dangerous combination. It could be fatal." (R809-81 0). Expert testimony submitted by Appellant in the court below also established that Appellant should have been screened for cognitive impairments, including decreased awareness and disturbance in judgment, reasoning and perception before any conclusion could be drawn about his competence to leave the hospital on foot, unaccompanied. (R 1278-1280). That did not happen here. In fact, when the ER 42 nurse was asked at deposition who made the decision that Appellant was competent to leave, she replied, "He did." (R674) (emphasis added). Respondent Dr. Chintapalli -the ER doctor did not submit his own affidavit in support of his motion for summary judgment, so he certainly offered no competent proof to contradict the ER nurse's testimony on this point. Despite initially testifying at deposition that he had no independent recollection of examining or treating Appellant on the date in question, the doctor insisted that it was his "clinical judgment" that Appellant was competent to make decisions in his own best interest on the afternoon of December 20th. (R543-544 ). 17 Yet, he also testified that, shortly before Appellant eloped, he had advised Appellant that a friend would have to take him home if Appellant wished to leave the Hospital. When asked why this was necessary, Respondent Chintapalli admitted that he did not want Appellant to drive because he "could have been" legally intoxicated at that point. "1 don't know." (R521-522). 18 17 Respondent Chintapalli swore at his deposition that he did not have "any independent recollection" of treating Appellant Kowalski on the date in question. Chintapalli answered HNo," when asked whether he had "any independent recollection as you sit here of having treated Kevin Kowalski on December 20th, 2006 at the St. Francis emergency room?" (R4l4, lines 17- 23). He went on to state that he remembered ''seeing him," but '"not the details." ''For the details. I had to go to the chart." (R4l5, lines 2-4 and 21-23). When asked what he remembered about seeing Appellant, the doctor replied: "He came to the emergency room for treatment, for a detox. That's all I can remember." (R415, lines 24-25; R416, tines 2-3). 18 Dr. Chintapalli went on to testify at deposition that it was his "clinical impression" that Appellant was not intoxicated at the time he left the Hospital on the afternoon of December 20, 2006. (R5l9-520). However, he conceded that he had written a diagnosis of"intoxication'' on Appellant's chart in the box marked "clinical impression." (R521 ). 43 The Medical Defendants must also be held to have had actual (or constructive) knowledge of their own laboratory and other test results, which showed that Appellant had an incredibly high .369 mg/dl b.a.c. shortly after his arrival at the Hospital, and just a few hours before he eloped. (Rl 71, R 1 76). Indeed, Dr. Chintapalli expressly acknowledged that he noted Appellant's b.a.c. on the date in question. (R540 ). Based upon their special medical training and expertise- and, indeed, based upon their own common knowledge- the Medical Defendants must have known the dramatic effect that alcohol (particularly, a b.a.c. level as high as .369 mg/dl) would have on an individual's "perception, response time, mobility, emotion, as well as a willingness to engage in risk." 19 In addition, the Medical Defendants should have known, based upon their first-hand observations of Appellant's belligerent and reckless behavior during his time in the ER, including his pulling an IV line out of his own arm, causing bleeding, that Appellant was at risk of harm, if left to roam out of the ER alone. His behavior provided further evidence of his continued incapacity and should have alerted the Medical Defendants to his irrational state of mind. (R631-632; R633; R646). 19 Herrera v. Lever, 35 Misc. 2d 1209A, 2012 N.Y. Misc. LEXIS 1683 (Sup. Ct., Kings Cty. 2012) (concluding that expert testimony is unnecessary for jury to assess intoxication, as the effects of alcohol are matters of common knowledge). 44 Similarly, the Medical Defendants must be held to have had actual (or constructive) knowledge of Appellant's recent medical history, as reflected in the Medical Defendants' own files- which would have alerted them to his recent history of depression and suicidal ideations, if they had only been consulted. ( R 1452-1453). Appellant's very recent episode of depression and suicidal ideations, combined with his high level of intoxication that day, should have triggered a 4'one-to-one" watch and other precautions under the Medical Defendants' own written protocols. (R1454-1455; R1456; R1459-l46l ). Indeed, the Medical Defendants' internal protocols provided specific guidelines for dealing with intoxicated or otherwise incompetent or high-risk patients. (Rl454-1455; R1456-1458; R1459-146l ). Yet, it is essentially undisputed that the Medical Defendants did not abide by their own written protocols in the treatment of Appellant on December 20, 2006. (These failures are discussed more fully below.) Where the acts or omissions of an institution are involved - such as a hospital, as in this case - the assessment of foreseeability of harm involves an analysis of what risks were known, or reasonably should have been known, "based on the institution's expertise or prior experience, or fron1 its own policies and practices designed to address such risks." Sanchez v. State, 99 N.Y.2d at 254 (emphasis added). Here, the Hospital had specific, written policies and practices in 45 place to address just this kind of risk. The very existence of these policies must be considered in assessing the foreseeability of harm to Appellant on that particular day, as well as the reasonableness of the Medical Defendants' conduct toward Appellant. See id. B. The Medical Defendants' Failure to Abide by the Hospital's Internal Protocols Provided Further Evidence That They Breached Their Duty of Care to Appellant As noted above, the Medical Defendants' violation of the Hospital's written policies concerning the need for "one-to-one" surveillance, where a patient is -"potentially unstable" or has a history of "heavy drinking," constitutes additional evidence of negligence. See Haber v. Cross County Hosp., 37 N.Y.2d 888, 889 ( 1975); Juseinoski v. N.Y. Hosp. Med. Ctr. of Queens, 18 A.D.3d 713, 715 (2d Dep't. 2005); Kadyszewski v. Ellis Hosp. Assn., 192 A.D.2d 765, 766 (3d Dep't. 1993); Pedraza v. Wyckoff Heights Medical Center, 191 Misc. 2d 659,664 (Sup. Ct. Kings Cty. 2002). 1. Mr. Kowalski Should Have Been Assigned One-To-One Surveillance According to the Hospital's own policies, Appellant was a suitable candidate for one-to-one surveillance, based upon, inter alia, his previous depression, ..suicidal ideations, and his heavy drinking. These were all among the "'indications that one-to-one surveillance may be needed," according to the Hospital's policies. See "En1ergency Department Policy 25.4." (R1454). Yet, no such surveillance 46 was imposed and- perhaps more significantly- there is no indication that Dr. Chintapalli even considered Appellant's history of psychiatric hospitalization (one month prior) or history of"heavy drinking" in evaluating the need for "one-to-one surveillance." (R466). Chintapalli admitted he did not consult Appellant's medical records, on file with the Hospital, even though they were readily accessible to the ER staff, via computer. (R423-424; R439-440). "One-to-one" surveillance would likely have prevented Appellant's elopement from the Hospital. Respondent Chintapalli confirmed that a patient on a '"one-to-one" surveillance will be prevented from leaving the ER by Hospital security. (R489-492). In addition, the Security Director also acknowledged that a severely intoxicated individual on a one-to-one watch will be prevented from eloping. (Rl392). 20 2. Mr. Kowalski Should not Have Been Left Unattended per the Hospital's Policy Addressing Potentially Unstable Patients The Hospital's "Emergency Department Policy 21.2" provides that: Children, confused, or critical patients, or potentially unstable patients by history will not be left unattended while in the Emergency Department. 20 Respondent Emergency Physician Services' contention, in the courts below" that an incapacitated patient monitored on a ·~one-to-one" basis is free to leave is not explained, and would render the one-to-one watch useless. Moreover, this assertion was contradicted by the testimony of the Hospital's Director of Security. (Rl392). 47 (R1456) (emphasis added). A jury could readily conclude that Appellant - a 4'very agitated" patient who ripped an IV line out of his own arm (with resultant bleeding)- should have been considered "confused" or "potentially unstable," and, pursuant to the Hospital guidelines, should not have been "left unattended in the Emergency Department," as Appellant was on the date in question. 21 Likewise, Appellant's recent history of suicidal ideations would seem to qualify him as "'potentially unstable by history." At the very least, a question of fact was presented as to whether the Medical Defendants acted negligently when they left Appellant unattended, contrary to the Hospital's own stated policies. 3. Mr. Kowalski Should Have Been Closely Monitored or Restrained. Given his State of Intoxication The record also contains ample· evidence that the Medical Defendants wholly failed to con1ply with the guidelines dealing with intoxicated individuals. Those guidelines were extensive and detailed - and yet it appears that the Medical Defendants ignored them entirely. For example, "Emergency Department Guideline II. C. II" (entitled, "ALCOHOL MANAGEMENT"), provides, in pertinent part, as follows: "All 21 As noted~ a nurse observed Mr. Kowalski rip out the IV line at 3:30p.m., in what can only be seen as a clear escalation of irrational behavior. (R63l, 632). See Clahar v. North Shore University Hospital, 2009 N.Y. Misc. LEXIS 5914 (Sup. Ct. Nassau Cty. 2009), wherein a mentally ill patient who pulled an IV line out of her arm was described as '~unpredictable and irrational." 48 patients presenting to the Emergency Department with a suspected or confirmed diagnosis of alcoholism or a related illness will be assessed, treated and either admitted or discharged with appropriate referral(s).'' {Rl459) (emphasis added). The first step of this protocol required an assessment of the type of alcohol abuse problem and whether the patient had recently consumed alcohol - as "indicated by history of mental confusion, odor of alcohol, high blood alcohol level, uncooperativeness." (R1459). Appellant had all of these indicators. Significantly, the guidelines also contemplated that, where an intoxicated patient was "belligerent or agitated" and threatening harm to himself or others, he ''should be restrained on his stomach or side with non-elastic restraints. AccuChek should be obtained to exclude hypoglycemia." {Rl459). This was not done. The guidelines also required the following measures: 4. Call security to attend patient. 5. Monitor state of consciousness and behavior, if patient restraint is necessary, per hospital protocol. (R 1460) (emphasis added). The timing of an intoxicated patient's discharge is also specifically addressed in the Hospital's internal guidelines, which state in this regard: 7. Discharge when patient is able to: (a) Walk unassisted down the hall; 49 (b) Has a destination and can get there without driving himself/herself; or (c) Is in the care of someone to be responsible for him, or proper legal authorities. (R 1459-1460). Unfortunately, the record contains plentiful evidence that the Medical Defendants failed to abide by these guidelines in treating Mr. Kowalski on December 20, 2006, resulting in his elopement and catastrophic injury. 4. In Order to Refuse Care, a Patient Must be Legally and Mentally Competent On the record before the Court there is also a question of fact, as to whether Mr. Kowalski was competent to refuse care, and leave the Hospital against medical advice on that afternoon, consistent with the Hospital's own policies. In this regard, Emergency Department Guideline ll.B.l provides: 1 . Competence. In order to refuse care a patient must be competent both legally and mentally. Examples of patients who would generally not be considered competent are one who is intoxicated and one who is in shock (R 1462) (emphasis added). In sum, it is respectfully submitted that the Medical Defendants' violations of the many policies and procedures of the Hospital concerning the safeguarding and discharge of incompetent, intoxicated, and ''potentially unstable patients" are 50 evidence of negligence. See Schneider v. Kings Highway Hospital Center, Inc., 67 N.Y.2d 743, 745 ( 1986). Moreover, the policies themselves reflect the Hospital's recognition of its common law authority to temporarily restrain certain patients, over their immediate objections. (R 1454, 1456). In apparent recognition of the fact that the Hospital's own internal guidelines were breached in this case, the Respondent Hospital argued below that its own policies could not "trump" Mr. Kowalski's constitutional right to leave the ER or the requirements of Article 9 of the Mental Hygiene Law regarding "involuntary confinement" of the ''mentally ill." However, no such absurd claim was made by Appellant herein. Rather, Appellant cited to the Hospital's policies because the policies plainly reveal the Medical Defendants' arguments to be entirely inconsistent with the Hospital's own written protocol; and the policies expose the Medical Defendants' arguments as an after- the- fact attempt to excuse a dereliction of duty in failing to safeguard an incapacitated patient. The Medical Defendants also argued below that a violation of internal policies that set a "higher standard" than what is required by law may not be considered as evidence of negligence. Such an argument is misplaced, however, as the Hospital policies do not set a higher standard than that required by law. In fact, the policies are entirely consistent with the Hospital's common law duty to 51 safeguard an incapacitated patient by taking specific action, such as establishing a one-to-one watch, applying restraints if necessary, or only discharging a severely intoxicated individual in the care of a responsible adult. See Point I, supra. CONCLUSION For all of the foregoing reasons, the Order appealed from should be reversed, on the law, the Complaint reinstated as against Defendants-Respondents, and the case remanded for trial before Supreme Court, Dutchess County. Dated: White Plains, NY October 26, 2012 BLEAKLEY PLATT & SCHMIDT, LLP BY: -r+--------+--~----------- SAN E. ALVAO JOHN P. HANNlGAN VINCENT W. CROWE ROBERT D. MEADE Attorneys for Plaintiff-Appellant Kevin Kowalski ONE NORTH LEXINGTON A VENUE P.O. BOX 5056 WHITE PLAINS, NY 10602-5056 (914) 949-2700 52