Kevin Kowalski, Appellant,v.St. Francis Hospital and Health Centers, et al., Respondents, et al., Defendants.BriefN.Y.May 28, 2013To be argued by: Timothy S. Brennan Time requested: 15 Minutes Dutchess County Clerk's Index No. 6848/07 Appellate Division- Second Department Docket No. 2011-06243 COURT OF APPEALS OF THE STATE OF NRWY'ORK KEVIN KOWALSKI, Plaintiff-Appellant, -against- ST. FRANCIS HOSPITAL & HEALTH CENTERS, TEAM HEALTH, INC., CHANDRA CHINTAPALLI, M.D. and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, P.C., Defendants-Respondents, JOHN DIRUSSO, Brief of Defendant-Respondent Emergency Physician Services of New York, P.C. Phelan, Phelan & Danek, LLP Attorneys for Defendant-Respondent Emergency Physician Services of New York, P.C. 302 Washington Ave. Ext. Albany, New York 12203 Tel. (518) 640-6900 Fax (518) 640-6955 Defendant. Date Completed: January 3, 2013 {AOI74210.l} STATE OF NEW YORK COURT OF APPEALS KEVIN KOWALSKI, -against- Plaintiff-Appellant, ST. FRANCIS HOSPITAL & HEALTH CENTERS, TEAM HEALTH, INC., CHANDRA CHINTAPALLI, M.D. and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, P.C., Defendants-Respondents, JOHN DIRUSSO, Defendant. Disclosure Statement Pursuant to 22 NYCRR 500.1 (f) Pursuant to 22 NYCRR 500.1 (f), certifies that the following are corporate parents, affiliates and/or subsidiaries of defendant-respondent Emergency Physician Services of New York, P.C.: Emergency Physician Services of New York, P.C. is a New York professional corporation, the shares of which are wholly owned by a New York licensed physician. Emergency Physician Services of New York, P.C. has no parent or subsidiary companies. It is affiliated with Emergency Physician Associates, Inc., a New Jersey general business corporation, pursuant to a management services agreement. Emergency Physician Associates, Inc. is a wholly owned subsidiary of Team Health, Inc. {AOI74316.l} DATED: January 3, 2013 {AOI74316.l} Yours, etc., .~ By:"-6 / ~ TIMOTHY S. BRENNAN Attorneys for Defendants, Emergency Physician Services ofNew York, P.C. 302 Washington A venue Extension Albany, New York 12203 Tel.: (518) 640-6900 Table of Contents Preliminary Statement Issues Presented Counterstatement of Facts A. The evidence adduced during discovery B. Relevant procedural history Argument Point I: Plaintiff knowingly refused medical treatment and could not have been detained and New York's statutory and Constitutional provisions (A) The Constitutional right to decline treatment (B) The Legislature sought to strike a balance by preserving the individual liberty of intoxicated patients in crafting Mental Hygiene Law § 22.09 (C) Plaintiff could not have been involuntarily detained pursuant to Mental Hygiene Law § 22.09 Point II: Plaintiff failed to demonstrate the existence of a material issue offact requiring jury resolution (A) If a "broader" common law duty is imposed it would render irrelevant the safeguard procedures defined by the Mental Hygiene Law (B) The common law duty relied upon by plaintiff does not apply to this case (C) Plaintiff failed to establish a genuine issue offact by "clear and convincing" proof that there was "a likelihood that harm would result" if the patient was not involuntarily detained Point III: To the extent that plaintiffs expetts disagreed with {A0174248.1)j 1 3 3 3 8 9 9 10 11 14 18 19 26 30 defendants' experts, at best, their opinions established a difference in medical judgment that was insufficient to oppose the motion 3 5 Conclusion 38 {A0174248.1)i i Table of Authorities Cases: Addington v. Texas, 441 U.S. 418 Alvarez v. Prospect Hospital, 68 NY2d 320 Bell v. New York City Health & Hosps. Com., 90 AD2d 270 Matter of Billie Boggs v New York Health & Hosps. Corp., 132 AD2d 340 Darren v. Safier, 207 AD2d 473 Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1 Engelhatt v. County of Orange, 16 A.D.3d 369 Fiederlein v. City of New York Health & Hosps. Com., 80 AD2d 821 Halvorsen v Baird, 146 F3d 680 Horton v Niagm·a Falls Memorial Med. Ctr., 51 AD2d 152 Humphrey v Cady, 405 US 504 Kowalski v St. Francis Hosp., 95 AD3d 834 Lawlor v Lennox Hill Hosp., 74 AD 3d 695 Mottau v State, 174 Misc.2 d 884 N.X. v Cabrini Medical Center, 97 NY2d 247 Pm·vi v City of Kingston, 41 NY2d 553 Pingtella v. Jones, 305 AD2d 38 People v. Wallace, 124 N.Y.S.2d 201 Santos v Unity Hospital, 301 NY 153 Scholendorffv Society ofN.Y. Hosp., 211 NY 125 Schrempfv. State, 66 N.Y.2d 289 Siegel v City ofNew York, 43 AD2d 271 (A0174248.1 Jijj 16, 12 94 35 11, 16 3 10,20 17-18 35 29 26 8 9 2, 31 2, 12 26,27 28-29 17 17 26 1Q,20 13,25 3, 21 Smee v Sisters of Charity Hosp. of Buffalo, 21 0 AD2d 966 Walsh v Town of Cheektowaga, 237 AD2d 947 Wamer v State, 297 NY 395 Weimeb v. Rice, 266 AD2d 454 White v Sheehan Memorial Hospital, 119 AD2d 989 Zophy v State, 27 AD2d 414 Zucketman v. City of New York. 49 NY2d 557 Statutes: CPLR3212 Mental Hygiene Law§ 22.09 Or.Rev.Statut § 430.399 {A0174248.1}iV 27 22 3, 20-21, 25 27 26 20 19 18 2-3, 11-14, 19-25, 29-30, 32 29 Preliminary Statement Appeal from an order of Supreme Court, Appellate Division, Second Depaliment, which, inter alia, granted defendant Emergency Medical Physician Services of New York, P.C. (hereinafter "EPSNY") summary judgment. Plaintiff commenced this action sounding in medical malpractice [60-82]. The allegations in the complaint stem from plaintiff's presentation to the Emergency Department at St. Francis Hospital Center ("SFHC") on December 20, 2006 [60-82]. The patient voluntarily presented at SFHC seeking treatment for chronic alcoholism [60-82]. Upon presentation, plaintiff was evaluated by an Emergency Department physician, codefendant Chandra Chintapalli, M.D. After a period of hours in the Emergency Department, the patient made a conscious, albeit ill conceived, decision that he no longer desired treatment and that he wanted to leave the facility. As plaintiff himself explained, he decided that he did not want treatment because he was displeased with the manner in which his treatment was progressing, or in his words, "nothing was happening" [244]. Some six hours after his last reported drink, and hours after he left the hospital, plaintiff was unfortunately struck by a motor vehicle and injured. Thereafter, plaintiff commenced this action seeking to recover from the medical providers for the injuries he sustained in the motor vehicle accident [1034-1032]. {A0173895.1}1 In essence, plaintiff argued that he should have been involuntarily detained, which is the only way he could have been prevented from walking out of the facility. At the close of discovery, the medical defendants moved for summary judgment asserting that there was no legal basis for involuntarily detaining the patient and, therefore, they cannot be found liable for the patient's decision to leave the Hospital. Plaintiff opposed the motion arguing that defendants failed to properly safeguard him [1241-1309]. Ultimately, Supreme Court, Dutchess County, (Sproat, J.S.C.) denied all defendants' motions for summary judgment finding a question of fact based upon the competing expert affidavits. Thereafter, defendants appealed to the Appellate Division, Second Department. By unanimous opinion dated May 1, 2012, the Supreme Court, Appellate Division, Second Department, reversed Supreme Court's order and, among other things, granted EPSNY summary judgment. Plaintiff was thereafter granted leave to appeal to this Honorable Court. As discussed at length below, the opinion of the Appellate Division, Second Department, should be affirmed. The record establishes that plaintiff voluntarily decided to leave the Emergency Depatiment and that the medical defendants were powerless to prevent him from leaving (see Mental Hygiene Law § 22.09; see also Lawlor v Lennox Hill Hosp., 74 AD3d 695; Mottau v State, 174 Misc.2 d 884). In suppmi of their motions for summary judgment, the medical defendants, among {A0173896.1 }2 other things, established that the patient did not meet the required criteria for involuntary detainment and treatment [43-53]. To be sure, upon the present appeal, plaintiff apparently concedes that he did not meet the criteria required by Mental Hygiene Law§ 22.09. Despite recognizing that he did not meet the criteria of Mental Hygiene Law § 22.09, plaintiff now argues that the medical defendants should have prevented him from leaving the facility based upon an alleged "common law duty" that is broader than Mental Hygiene Law § 22.09. As discussed at length below, as a statute that limits a patient's ability to control his or her individual freedom and ability to make medical decisions, Mental Hygiene Law § 22.09 should be strictly construed (see Wamer v State, 297 NY 395, 404; Siegel v City of New York, 43 AD2d 271). In short, in balancing the competing societal interests of individual freedom and the protection of incapacitated individuals, the Legislature crafted detailed procedures and criteria regulating the circumstances under which a patient may be involuntarily detained due to intoxication. It is respectfully submitted that these criteria and procedures should not be judicially abrogated or negated by judicially imposing a broad common law requirement, as proposed by plaintiff. It is submitted that it would be the province of the Legislature to change or remove the criteria of Mental Hygiene Law§ 22.09. This statute must be strictly construed and it is uncontroverted that plaintiff did not satisfy its requirements. As such, it is {A0173895.1 }3 respectfully submitted that the medical defendants were properly awarded summary judgment. Issues Presented I. Whether plaintiff could have been involuntarily detained pursuant to Mental Hygiene Law and the Constitution where he refused treatment and expressly desired to leave the Hospital. II. Whether plaintiff established the existence of a triable issue of material fact sufficient to wan·ant jury resolution. III. Whether plaintiffs proof established anything more than, at best, a difference in medical judgment that is insufficient, as a matter of law, to support the claims. Counterstatement of Facts A. The evidence adduced during discovery: The evidence adduced during discovery establishes that plaintiff presented at the Emergency Department on December 20, 2006, at approximately 11 :20 a.m. with a significant history of alcohol abuse [ 166-179]. Plaintiff was driven to the SFHC's Emergency Department by a friend, Jason Hening [323]. Upon presentation, plaintiff reported that he wanted to detox from alcohol and had his last drink two hours earlier [ 466-467]. The patient repmied that he had been punched in the right eye and had taken six to eight, 25 mg. capsules of Librium en {A0173896.1 }4 route to the hospital [166-179, 457]. Plaintiff was prescribed 25 mg. capsules of Librium on an "as needed" basis [172]. At triage, Kowalski's vitals were nmmal [43-52, 166-179]. His neurological status was checked as "alert," though his speech was "garbled" [166-179, 455-459]. The patient was seen by Dr. Chintapalli at 11:50 a.m. [170]. Dr. Chintapalli noted the patient's ten-year history of alcohol abuse [170-171]. Dr. Chintapalli also noted that the patient had been transported to the Hospital by a friend, requesting detox and that the patient reported that his last detox was four months earlier [170-171, 466-467]. Upon examination, Dr. Chintapalli found the patient to be in "moderate" distress. His HEENT (head, eyes, ears, nose and throat) exam was nmmal, except for a black eye [170-171]. As a result of the black eye, Dr. Chintapalli sent the patient for a CAT scan at approximately 12:40 p.m. [460]. Dr. Chintapalli ordered the CAT scan to determine if there was an orbital or nose fracture [460-461]. The results of the CAT scan were negative [532]. The patient's neck, respiratory and cardiovascular exams were nmmal, except he was positive for rhonchi. His gastrointestinal, abdomen, skin, musculoskeletal exams were normal [166-179]. His neurological exam was noted to be normal and he was oriented to time, place and person. His cranial nerve test was normal and he had no motor or sensmy deficit. Various lab tests were ordered [166-179]. The patient's blood-alcohol (A0173896.1 }5 content was .369% [472]. The other tests were either normal or only slightly abnormal [ 43-52, 166-179]. Dr. Chintapalli's diagnosis was "alcohol intoxication/detox" [171]. Dr. Chintapalli discussed the case with a representative of a detox facility, which agreed to accept the patient [514-515]. At around 1:30 p.m., a nurse noted that Kowalski walked to the bathroom without difficulty [461]. At 3:30p.m., the nurse noted that he had pulled out his IV line [462-463]. Ten minutes later, Dr. Chintapalli noted that the patient had been accepted to a detox facility, and that, while awaiting transport, he changed his mind and advised that he wanted to go home [514-517]. He was advised to get a family member to pick him up, and was observed walking around making phone calls to arrange for transpmiation [514- 517]. The patient was alert and oriented and had a steady gait [514-517]. Dr. Chintapalli then noted that the patient had left the Emergency Depa1iment and security was notified [514-517]. At 3:45p.m., a nurse noted that he was "gone from bed, left un-witnessed from ER. MD and supervisor aware" [166-179, 461- 462]. Approximately two hours later, at 5:33 p.m., plaintiff was struck by a car driven by co-defendant John DiRusso while attempting to cross Route 9 in Poughkeepsie. At the time, of his presentation, plaintiff had a long history of heavy drinking and detoxes followed by relapses [203-211, 298-300, 333-335]. {A0173896.1 }6 Plaintiff also had an extensive history of using Librium in connection with in- and out-patient alcohol treatment, as well as self-detox attempts [298-300, 333-335]. At his deposition, plaintiff testified that as of December 20, he had been drinking vodka for a period of "days" [229, 233, 338-339]. According to plaintiff, he decided to go to the hospital because he was "getting sick of drinking" [234]. The patient was dropped off at SFHC by a friend [234]. Plaintiff testified that he took Librium prior to presenting at the Hospital [236]. With respect to his decision to leave the Emergency Department, plaintiff testified that he decided to leave because "nothing was happening" [244]. After approximately four hours at the Hospital -- during which time the patient was obviously not drinking -- the patient decided that he no longer wanted to be treated there because, as he put it, "nothing was happening" [167-175, 244]. While this decision may have been poor, it was nonetheless reasoned and did not evince a desire or a substantial likelihood that it would result in harm. Indeed, when the patient decided to leave the Hospital, it is undisputed that he attempted to make appropriate an·angements for a ride home by contacting his friend, Mr. Hening [1263]. This is further evidence that the patient was capable of understanding the risks of his actions at the time. The fact that the patient had capacity is buttressed by Jason Hening's affidavit [1263]. In this respect, it should be noted that Mr. Herring confirms that plaintiff did, in fact, contact him to request a ride home {A0173S96.1}] [1262]. Prior to leave, plaintiff never voiced a desire to hann himself or others [167-175]. The patient believes that he went to the area behind a friend's beauty parlor and sat near a dumpster [250]. Plaintiff testified that prior to the accident he was "just wandering around" [251]. He has no recollection of the car accident or the circumstances surrounding it [252]. B. Relevant Procedural History: At the conclusion of discovery, all defendants moved for summary judgment. In this respect, EPSNY argued, among other things, that plaintiff was free to refuse alcohol treatment by leaving the Hospital. EPSNY, and the other defendants, noted that plaintiff was not a candidate for involuntary treatment at the time he presented since he was not suicidal and did not exhibit conduct that would establish that he presented a substantial "threat to himself or others" [ 1 0 17]. Ultimately, Supreme Court, Dutchess County, denied the motions for . summary judgment by concluding that "the defendants SFH, EPSNY, and Chandra Chintapalli, M.D.'s medical expetis' opinions were 'contradicted by the plaintiffs medical expert[ s] leaving a conflict of medical opinion that should be resolved by a finder offact"' [9). Defendants appealed. On appeal, the Appellate Division, Second Depatiment, unanimously reversed Supreme Court's decision and granted the Medical Defendants' motions {A0173896.1}8 for summary judgment. In this respect, the Appellate Division held that the medical defendants "established, prima facie, via their respective motions for summary judgment, that they lacked authority to confine the plaintiff upon his departure from St. Frances, where he voluntarily sought treatment" (Kowalski v St. Francis Hosp., 95 AD3d 834). The Appellate Division further held that plaintiff failed to establish a triable issue of fact. Thereafter, plaintiff was granted leave to appeal to this Honorable Court. Argument I. Plaintiff knowingly refused medical treatment and could not have been detained under New York's Statutory and Constitutional provisions. The central issue to this appeal is one that strikes directly at a patient's Constitutional and statutory right to refuse unwanted medical treatment. It is undisputed in this case that the patient decided, on his own accord, to leave the Hospital and refuse medical treatment [244]. In an attempt to circumvent this reality, plaintiff argues that the Hospital should have detained him against his will for alcohol treatment. As discussed below, this argument is flawed since the evidence establishes that the patient did not meet the statutory and Constitutional criteria for involuntary medical treatment. In order to consider this, it is necessary to consider the limited legal bases that a medical professional may utilize to detain an incapacitated individual against his or her will. {A0173395.1)9 (A) The patient had a Constitutional right to decline treatment. In his brief, plaintiff apparently fails to recognize that the statutory scheme that was developed seeks to strike a balance between two competing societal interests. On the one hand, a goal of the legislation is to protect the safety of patients and the public at large. This is the interest that plaintiff relies exclusively upon. On the other hand, our society must protect the individual rights of patients to be free to decline medical treatment and not be detained against their will. Involuntmy detention and forced medical treatment is a massive curtailment of the cherished individual freedoms of the citizens of our State and County. This fact, though central to the dispute at hand and underlying law and statutory scheme, is largely ignored by plaintiffs argument. To be sure, it is axiomatic that "'[eve1y] human being of adult years and sound mind has a right to detennine what shall be done with his own body"' (Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1, 13, quoting Scholendorff v Society of N.Y. Hosp., 211 NY 125, 129). "The doctrine of informed consent developed out of [these] common law principles" (Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1, 13). "In many of the States of this Nation, including our own, the decision to 'confine a person for compulsory * * * treatment * * * [is conditioned] not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment {AOl7.38S6.1}1Q that his potential for doing harm, to himself [or herself] or to others, is great enough to justifY such a massive curtailment of liberty"' (Matter of Billie Boggs v New York Health & Hosps. Corp., 132 AD2d 340, quoting Humphrey v Cady, 405 US 504, 509). "The United States Supreme Comt in Addington v. Texas, 441 U.S. 418, held that 'clear and convincing proof is required by the Fourteenth Amendment of the US Constitution to involuntarily commit an individual" (Matter of Billie Boggs v New York Health & Hosps. Corp., 132 AD2d 340). As demonstrated above, patients in this country have a fundamental right to refuse unwanted medical treatment. In order to detain or involuntarily treat a patient due to a mental incapacity, it must be established by "clear and convincing proof' that the patient's potential for doing harm to himself or others is significant enough to justifY the curtailment of his or her individual liberty (see Matter of Billie Boggs v New York Health & Hosps. Corp., 132 AD2d 340). These principles are also embodied in the New York Mental Hygiene Law and equally applicable to patients that are temporarily incapacitated due to intoxication. (B) The Legislature sought to strike the balance by preserving individual liberty of intoxicated patients in crafting Mental Hygiene Law §22.09 The protection of an intoxicated individual's ability to make medical decision and to leave a facility on his or her own free will has been legislatively accorded the same protections that apply to mentally ill patients. As it relates to {A0173896.1 }11 compulsory treatment for intoxicated persons, these principles are embodied in New York Mental Hygiene Law§ 22.09. Pursuant to this provision of the Mental Hygiene Law: "A person who is brought with his or her objection to any facility or treatment program * * * 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 there is a likelihood to result in harm to the person 01' 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 the harm to the person or others, he or she must be released'' (Mental Hygiene Law§ 22.09 [e] [emphasis supplied]). To prevent the unsupported detention of patients, the Legislature specifically defined the subjective phrase "likelihood to result in harm" under the statutory scheme. In this respect, the statute requires the following: "(i) a substantial risk of physical hatm to the person manifested by threats or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or others, or (ii) a substantial risk of physical hatm 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 [3] [emphasis supplied]). As can be seen based upon the Constitutional and statutory construct, liability cannot be imposed for the release of a voluntary patient who has not "manifested" or "demonstrated" dangerous or violent behavior, since the treatment professional {A0173896.1 }12 would have no authority to involuntarily restrain the patient under these circumstances (see Schrempfv. State, 66 N.Y.2d 289, 294, 296). In the absence of "clear and convincing" proof that the patient met the statutory and Constitutional standard, the patient was entitled to decide whether he wanted to remain on the premises for detox treatment, or not (see Addington v. Texas, 441 U.S. 418; Matter of Billie Boggs v New York Health & Hasps. Cm:p., 132 AD2d 340). Moreover, it is submitted that the statute does not even require that liability be imposed if the standard was satisfied. It merely provides that a facility "may" involuntarily detain the patient (Mental Hygiene Law § 22.09). Conversely, the statute requires that a patient be released if he or she does not meet the criteria. For instance, the statute expressly provides that such a patient "must be released" (Mental Hygiene law § 22.09 [ e ]). The statute and Constitutional jurisprudence establish that, as a matter of law, an intoxicated person has the right to refuse medical treatment so long as he or she does not present an imminent risk of harm. The law establishes that a patient cannot be treated involuntarily without a Constitutional or statutmy basis. This law also expressly requires that, to apply, the patient must first be brought to the treatment facility by a police or peace officer (Mental Hygiene Law § 22.09 [4][c][e]). As discussed below, this requirement is a substantive {A0173896.1 }13 requirement that provides additional protections to the patient's individual freedoms. It cannot, as plaintiff suggests, be ignored. (C) Plaintiff could not have been involuntarily detained pursuant to Mental Hygiene Law § 22.09. On this appeal, plaintiff apparently now concedes that he could not have been detained pursuant to Mental Hygiene Law§ 22.09 [Appellant's Brief, at 31- 35]. In this regard, on the present appeal plaintiff now argues only that Mental Hygiene Law § 22.09 did not abrogate an allegedly broader "common law duty" [Appellant's Brief, at 31-35]. As discussed below, it is respectfully submitted that plaintiffs argument that there is a broader common law duty is without merit. While it is submitted that plaintiff waived the argument that Mental Hygiene Law § 22.09 applies by failing to raise the issue in his brief, before going any further, it should be noted that defendants established their burden upon the summary judgment motion to demonstrate that the patient could not have been detained or treated under the Constitutional or statutory provisions discussed above. In support of the motions for summary judgment, defendants established that the patient was not appropriate for involuntary detention [ 43-52]. In particular, the undisputed facts establish that plaintiff did not pose a substantial threat to himself or others while at the Hospital [42-53]. Significantly, the patient never voiced a desire to harm himself or others while at the Hospital [42-53, 167-175]. More impmiantly, the record reflects that the patient was making reasoned {A0173896.1 }14 decisions right up to where he consciously decided to leave the Hospital because he was displeased with the service [42-53, 244].. For instance, the patient decided that he wanted to seek detox treatment, and ananged for a safe ride to the Hospital to seek out such treatment [234]. After approximately four hours at the Hospital -- during which time the patient was obviously not drinking -- the patient decided that he no longer wanted to be treated there because, as he put it, "nothing was happening" [167-175, 244]. While this decision may have been poor, it was nonetheless reasoned and did not evince a desire or a substantial likelihood that it would result in harm tantamount to suicidal or homicidal ideations. Indeed, when the patient decided to leave the Hospital, it is undisputed that he attempted to make appropriate arrangements for a ride home by contacting his friend, Mr. Hening [1263]. This is further evidence that the patient was capable of understanding the risks of his actions at the time. The fact that the patient had capacity is buttressed by Jason Hening's affidavit [1263]. In this respect, it should be noted that Mr. Herring confinns that plaintiff did, in fact, contact him to request a ride home [1262]. The undisputed facts establish that plaintiff did not pose an imminent or substantial threat to himself or others while at the Hospital [ 43-52]. Plaintiff never voiced a desire to harm himself or others [167-175]. As noted above, the patient was making reasoned decisions right up to where he consciously decided to leave {A0173S96.1}15 the Hospital because he was displeased with the service [244]. Based upon these facts, it is evident that the patient could not have been involuntarily detained as a matter of law. In the absence of proof that the Hospital could have compelled him to remain, plaintiff cannot hold the medical defendants liable for the unfortunate motor vehicle accident [42-53] (Addington v. Texas, 441 U.S. 418; Matter of Billie Boggs v New York Health & Hosps. Corp., 132 AD2d 340). To be sure, the case at bar is strikingly similar to the facts presented in Mottau v State, 174 Misc.2d 884. The plaintiff in Mottau was an alcoholic who was a voluntary in-patient treating at the McPike Alcohol Treatment Center. The plaintiff in Mottau left the treatment center and drank a substantial portion of a bottle of vodka. Upon returning to the treatment facility, the patient was given a breathalyzer test which registered 0.22%. The patient was discharged from the facility. Prior to discharge, the defendant offered on two different occasions to get the patient a place where he could sober up, but the patient refused. The patient left the treatment facility on foot at approximately 5:17 p.m. and was struck by a motor vehicle at approximately 7:30p.m. that evening. Upon consideration of the facts ofthis case, the Court of Claims held that the case must be dismissed because "defendant did all that it could within the law" since the patient could not have been involuntarily detained under the Mental Hygiene Law (id., at 885). {A0173895.1 }16 Similar to Moffatt, the record does not provide a basis for the conclusion that the patient could have been legally detained against his will. The record amply establishes that the patient did not meet the criteria for involuntary detainment or treatment. Accordingly, it is respectfully submitted that defendants met their initial burden to establish entitlement to summary judgment, thus the burden shifted to plaintiff to oppose the motion with "clear and convincing" proof that there was "a likelihood that harm would result" if the patient was not involuntarily detained. It is respectfully submitted that plaintiffs opposing papers were insufficient as a matter of law. A patient cannot be involuntarily detained simply because he is intoxicated (see People v. Wallace, 124 N.Y.S.2d 201). In order to find liability there must be a showing that the patient could have been involuntarily detained. Absent this, the medical defendants did not have sufficient control of the patient to prevent the hmm. In this respect, the case at bar is similar to Pingtella v. Jones, 305 AD2d 38. In Pingtella, the Appellate Division, Third Department held that a physician did not owe a duty of care to the child of a patient who stabbed her child. The Court concluded that the physician did not have sufficient control over the patient to hold him responsible for the patient's conduct. Although the patient had been voluntarily hospitalized prior to the incident, no liability could be imposed on the physician for discharging her because there was no evidence that she was dangerous. Similarly, in Engelhart v. County of Orange, {A0173S96.1}17 16 A.D.3d 369, the Second Department held that the defendant did not owe a duty to a plaintiff who was killed by a voluntary psychiatric patient who was being treated by the defendant because the defendant did not have sufficient control over the patient. Under the· circumstances presented here, it is respectfully submitted that the medical defendants cannot be found liable. Indeed, the record establishes that the medical defendants made a prima facie showing that they lacked the Constitutional or statutory authority to detain and treat the patient against his will [43-52]. Beyond the proof described above, the medical defendants submitted the expert affidavit of Dr. Phillip Muskin to establish that the patient did not meet the criteria for involuntary confinement or treatment. Based upon this, it is respectfully submitted that the burden shifted to plaintiff upon the motion for summary judgment to demonstrate a material issue of fact. It is respectfully submitted that the Appellate Division, Second Department, correctly determined that plaintiff failed to meet this burden. II. Plaintiff failed to demonstrate the existence of a material issue of fact requiring jury resolution. CPLR 3212(b) provides that a motion for summary judgment shall be granted if, upon all the papers and proof submitted, a defense shall be established sufficiently to warrant the Court as a matter of law, in directing judgment in favor of any party. If the proponent of a summary judgment motion demonstrates its entitlement to judgment as a matter of law, the burden shifts to the patiy opposing {A0173S96.1}18 the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action (see Alvarez v. Prospect Hospital, 68 NY2d 320; Zucke1man v. City of New York. 49 NY2d 557). Mere conclusions, expressions of hope or unsubstantiated allegations or asse1tions are insufficient to defeat a motion for summary judgment (id.). As discussed below, it is respectfully submitted that plaintiff failed to meet this burden. (A) If a "broader" common law duty is imposed it would render irrelevant the safeguard procedures defined by the Mental Hygiene Law. In an initial attempt to establish the existence of a question of fact, plaintiff argues that there is a broader common-law duty that required the medical defendants to detain the patient against his will due to his intoxication [Appellant's Brief, at 13-25]. Plaintiff argues that this purportedly broader duty was "not diminished by the statute" [Appellant's Brief, at 33]. It is respectfully submitted that the common law does not support the detention of an intoxicated person that does not meet the statutory criteria set forth in Mental Hygiene Law § 22.09. If this Honorable Comi were to accept plaintiffs argument in this regard, it would render the statutory criteria and scheme set forth in Mental Hygiene Law § 22.09 irrelevant. In short, it would create an exception to the statute that would swallow the rule. Such a broad common law rule would directly conflict with the statutory {A0173896.1}19 scheme which expressly requires that a patient that does not meet the criteria "must be released" (Mental Hygiene Law§ 22.09 [e]). It is respectfully submitted that plaintiffs argument that a "broader" common law duty to detain intoxicated individuals is unsupported. The compulsory treatment or detainment of an individual can only be done in accordance with established statutory criteria. As noted above. "'[every] human being of adult years and sound mind has a right to determine what shall be done with his own body'" (Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1, 13, quoting Scholendorff v Society of N.Y. Hosp., 211 NY 125, 129). In a similar vein, "[i]t is settled that one who arrests or restrains another may be liable for pursuing illegal or improper procedure as well as for acting upon an insufficient or improper basis" (Wamer v State, 297 NY 395, 400). As can be seen, these competing societal goals have been balanced by the creation of statutory procedures that are designed to ensure the protection of personal freedom, while permitting detainment of appropriate persons. In an effort to strike a balance for these competing societal goals, the Legislature enacted Mental Hygiene Law § 22.09 that codified the procedures and circumstances under which a patient may be involuntarily detained due to intoxication. This statutory scheme expressly provides that "in no event" may a person be "retained against his or her objection" beyond the shorter of"(i) the time {I\0173S96.1 }20 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]). As noted above, the phrase "likelihood to result in harm" was expressly defined by Mental Hygiene Law § 22.09 (3). This definition requires more than mere intoxication. As can be seen by the plain language of the statute, the Legislature expressly defined and limited the circumstances under which a medical provider may interfere with a patient's individual liberty to leave the facility and decline treatment. "The State has a legitimate and vital interest in protecting its citizens from harm at the hands of potentially dangerous [incapacitated persons], but that is not the only interest to be served. The libetty of an individual * * * is too precious to be invaded in any fashion, by any procedure, other than that explicitly prescribed by law" (Warner v State, 297 NY 395, 404). Accordingly, it is axiomatic that: "Where personal freedom is at stake, insistence upon strict and literal compliance with statutory provisions is not only reasonable but essential" (Warner v State, 297 NY 395, 404; see also Siegel v City ofNew York, 43 AD2d 271). As can be seen, as a matter of statutoty construction it is respectfully submitted that this Honorable Court should not find that there is a broader common law duty to restrain the individual freedom of patients under circumstances such as this. Instead, it is submitted that "strict and literal compliance with the statutory {A0173896.1 }21 provisions" enumerated in Mental Hygiene Law § 22.09 are required. If a broader common law duty is found, it would render the procedures and criteria set forth in Mental Hygiene Law § 22.09 in·elevant. To be sure, plaintiff apparently recognizes that he did not fit the involuntary detainment criteria as he does not argue that he should have been detained under Mental Hygiene Law§ 22.09. Instead, he argues that the statutory limitations and protections provided by Mental· Hygiene Law § 22.09 should be judicially abrogated because, according to plaintiff, they may result in purportedly "illogical" results [Appellant's Brief, at 31-35]. Plaintiff argues that the statute is evidence of "the public policy of the State, which is to protect individuals who are incapacitated by alcohol (and to protect the public) by establishing a statutory framework for emergency observation and care" [Appellant's Brief, at 33]. It is respectfully submitted that plaintiff's argument in this regard completely ignores half of the equation. In defining the circumstances and procedures required to involuntarily detain intoxicated individuals, the Legislature was striking a balance between the competing interests of individual liberty and the need to protect the patient and the public. Plaintiff's argument focuses only on the protection of the public by arguing that the procedures should be ignored for a broader duty. In reality, plaintiff is requesting that this Honorable Court craft a decision that would supersede the Legislature's statutory scheme because he feels that there {A0173S96.1 J22 is "no logical reason why the public policy reflected in the statute" should not have applied to him as well [Appellant's Brief, at 32]. Ifplaintifffeels that patients that present such as he should be detained, the remedy would be to have the Legislature address the matter by amending the legislation to require intoxication only. Indeed, plaintiff continually cites his high blood alcohol content as a basis to detain him. When enacting Mental Hygiene Law § 22.09, the Legislature could have easily set a blood alcohol content as the sole test for involuntary confinement, similar to what is done with the DWI laws, but it chose to require additional considerations beyond intoxication alone. It is respectfully submitted that the Legislature's judgment in this regard should not be judicially disturbed. Plaintiff repeatedly cites his blood alcohol content to support his argument that he should have been involuntarily detained. The Legislature, however, in enacting Mental Hygiene Law § 22.09 instmcts that consideration of the blood alcohol content alone, is insufficient as a matter of law. Under the statutory scheme, the person must be "incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others" (Mental Hygiene Law§ 22.09 [c], [e]). The statute defines "incapacitated" to mean that "a 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 {A0173896.1 }23 making a rational decision with respect to his or her need for treatment" (Mental Hygiene Law § 22.09 [2]). As can be seen, incapacitation due to alcohol alone is not enough. This incapacity must be accompanied by a "likelihood to result in harm" as defined by Mental Hygiene Law § 22.09 (3). The Legislature expressly requires more than a high blood alcohol content or incapacity. This statutory requirement should not be judicially abrogated. Beyond this, plaintiff apparently recognizes that he did not fit the statutory criteria of Mental Hygiene Law § 22.09 to be involuntarily detained because it is uncontested that the text of Mental Hygiene Law § 22.09 requires that it only applies to patients that were "taken by a peace officer" or a "police officer" to the facility (Mental Hygiene Law § 22.09 [4][c],[e]). It is uncontested that, in this case, the patient came voluntarily and decided, after hours at the facility without a drink, that he no longer desired alcohol treatment [42-53, 244]. As a result, the plain text of the statute exhibits that it is not applicable to the circumstances presented here. In an attempt to circumvent this reality, plaintiff argues that the "public policy" reflected in the statute should have required his detention since, according to plaintiff "there is no logical reason" for this requirement [Appellant's Brief, at 32]. In essence, plaintiff argues that the statute should be applied regardless of the {A017.3S96.1}24 fact that it does not, on its face, apply because plaintiff feels that there is no significance to how the patient arrived at the facility. Contrary to this assertion, there is a significance to the requirements of Mental Hygiene Law § 22.09 (c). In particular, this provision only permits the police officer to bring the intoxicated person to the hospital for an evaluation where it "appears" that the person is "incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in hann to the person or others" (Mental Hygiene Law§ 22.09 [c]). After atTiving at the Hospital, the individual is entitled to be "examined as soon as possible by an examining physician" who must also ascetiain whether the patient "is incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm" (Mental Hygiene Law § 22.09 [e]). These statutory requirements are not hollow or non-substantive requirements. Again, since personal freedoms are limited by the statute, "strict and literal compliance with statutory provisions" is "essential" (Wamer v State, 297 NY 395, 404). In this case, the statute provides two Constitutional and procedural "checks and balances" prior to the detainment of the patient. First, a police or peace office must have enough evidence to establish the appearance of a "likelihood of danger" and then this must be verified after a prompt examination by a medical professional. Requiring the patient to be initially detained by a police {A0173896.1 }25 or peace officer imports all of the pre-existing protections of freedom under the Fourth Amendment and related criminal procedure provisions. The first requirement cannot be characterized as ministerial as it is an additional protection of individual freedom. Under the statutory scheme, both the police officer and the medical professional must agree that there is a likelihood of danger. Taking away one of these, as a matter of law, substantively alters the statutory scheme. The legislature was free to craft the statute in a manner that did not require police involvement, but it did not. (B) Even if it is found that the common law duty was not superseded by the statutory scheme, the common law duty relied upon does not apply to this case. In an attempt to create the appearance that the Medical Defendants had a duty of care to plaintiff to prevent this accident, plaintiff argues that the "doctor- patient" and "hospital-patient" relationships created an increased duty of care [Appellant's Brief, at 13-17]. In support of this argument, plaintiff relies upon the proposition 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 NY2d 247, 252-253; see also Santos v Unity Hospital, 301 NY 153, 156; Zophy v State, 27 AD2d 414, 416, affd 22 NY2d 921; White v Sheehan Memorial Hospital, 119 AD2d 989; Hmion v Niagara Falls Memorial Med. Ctr., 51 AD2d 152) {A0173895.1 }2 6 [Appellant's Brief, at 15]. Plaintiff argues that this alleged duty required the Medical Defendants to prevent him from leaving the emergency department. This argument is flawed for several reasons. Most importantly, it ignores the fact that it is uncontested that plaintiff voluntarily and knowingly refused medical treatment [244]. It is in this way that plaintiff misplaces reliance upon cases that stand for the general proposition that a "hospital has a duty to safeguard the welfare of its patients * * * measured by the capacity of the patient to provide for his or her own safety" (N_.X. v Cabrini Med. Ctr., 97 NY2d 247; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966). These cases do not apply to the facts of the present case since plaintiff, by his own decision, was no longer a patient of the hospital and there was no basis to involuntarily confine or treat him. Absent statutory or constitutional authority, a Hospital cannot force someone to be a patient. Absent legal authority, the medical defendants were powerless to prevent him from leaving. The only thing that could have been done was to involuntarily detain the patient from leaving. In order to do this, the inescapable real.ity is that the medical defendants would have had to have complied with. the existing statutory scheme under the Mental Hygiene Law. As chronicled above, the uncontroverted evidence establishes that the patient could not be detained under that scheme. {A0173S96.1}27 In further support of this argument, plaintiff relies heavily upon a series of cases that are fundamentally distinguishable. For instance, plaintiff relies on Parvi v City of Kingston, 41 NY2d 553 [Appellant's Brief, at 17]. In Parvi the Court held that the police officers owed a common law duty to safeguard an intoxicated individual in their custody. It is respectfully submitted that plaintiff's reliance upon Parvi is misplaced. In Parvi, the defendant police officers took custody of the plaintiff, who was in an intoxicated state, and transported him out of town to an area near the New York State Thruway. Ultimately, plaintiff was struck by a car on the Thruway and that action ensued. This Honorable Court, among other things, overruled the dismissal of a negligence action against the police officers. In so doing, this Honorable Comi refused to "speculate on the duty of a police officer to arrest or not to anest intoxicated persons" (id., at 559). Instead, this Honorable Court rested its decision on the maxim that "when no original duty is owed to the plaintiff to undetiake affirmative action, once it is voluntarily undertaken, it must be performed with due care" (id., at 559). Central to the Parvi decision is the fact that the police officers in that case had legal and procedural options available. For example, it was noted that the officers, in their discretion, had the legal authority to transpmi the plaintiff home or "to some other safe place as the circumstances dictate" (id., at 558). This Honorable Court held that, though they originally were not obligated to act, they {A0173896.t}28 took custody of the drunken individuals and transported them to a dangerous place. This Honorable Court found that a jmy could conclude that this violated a legal duty that they undertook voluntarily. Unlike Parvi, the medical defendants in this case lacked a legal basis to restrain plaintiff. Absent such authority, the alleged duty to safeguard the patient against his own poor judgment cannot have been undertaken. In Parvi it was undisputed that the police officers could have transported the plaintiffs home or to a safe location. To be sure, police officers in circumstances such as Parvi could actually take the detainee to the Hospital to be evaluated pursuant to Mental Hygiene Law § 22.09. It is in this fundamental way that the case at bar is distinguishable. In contrast, a medical professional must respect the medical decision making of their patients absent the circumstances outlined in the Mental Hygiene Law. It is in this way that plaintiff's reliance upon Walsh v Town of Cheektowaga, 237 AD2d 947 is similarly misplaced [Appellant's Brief, at 17-19]. Plaintiff next relies upon Halvorsen v Baird, 146 F3d 680, for the proposition that: "Detaining a person intoxicated in a public place and confining him ovemight until sober enough to be safe does not deprive the person of a constitutional right" (id., at 687). Plaintiff, however, ignores the fact that the plaintiff in Halvorsen was detained based upon a criminal offense in Oregon at the time, being in a public place while dmnk (Or.Rev.Statut § 430.399 [1]; Halvorsen {A0173896.1 }29 v Baird, 146 F3d 680, 687). The medical defendants lacked the authority to confine plaintiff here as he had not committed a crime. Moreover, as in Oregon, the New York Legislature has specifically defined, by statute, the requirements for the involuntary detainment of intoxicated persons by medical professionals (Mental Hygiene Law § 22.09). These requirements were not satisfied. (C) Plaintiff failed to establish a genuine issue of fact by demonstrating by "clear and convincing" proof that there was "a likelihood that harm would result" if the patient was not involuntarily detained for treatment. As discussed above, the only possible argument that could be made that defendants are liable for the injuries must be premised upon the theory that they had legal authority to involuntarily detain the patient. In order to involuntarily detain the patient the medical defendants would have had to have, at the very least, established "by clear and convincing proof' that there was "a substantial risk of physical harm" (Mental Hygiene Law § 22.09). As a result, it is submitted that plaintiffs proof in opposition to the motion had to establish, as a matter of law, that the requirements of Mental Hygiene Law § 22.09 and the Constitution were met. It is submitted that the expert affidavits and proof submitted by plaintiff failed to meet this standard and, therefore, summaty judgment was appropriately awarded by the Appellate Division. In opposing the motion, plaintiff argued that the medical defendants breached their alleged duty to "safeguard their patient" by failing to have him {A0173SS6.1}3Q under "one-to-one" supervision or to otherwise "monitor him to prevent him from eloping" [1267]. This argument is a red herring. Even if the patient was monitored "one-to-one", the only way to stop the patient from leaving would be to have involuntarily retained him. As such, the patient would have had to meet the requirement of the Mental Hygiene Law for involuntary treatment. Absent this, he was free to leave even if he was supervised. Stated differently, if the patient did not meet these requirements, but was restrained, the claim in this case would be for false imprisonment or a violation of the patient's right to informed consent. As can be seen, the only real issue in this regard is whether the patient met the standard for involuntary treatment. Perhaps in recognition of this, plaintiff submitted the affidavit of Joseph Yates, M.D., in an attempt to support his claim. A review of this affidavit, however, fails to establish legal justification for involuntarily detaining the patient (Lawlor v Lennox Hill Hosp., 74 AD3d 695). In this respect, Dr. Yates opined only that there were "signs" of plaintiff being a danger to himself or others [1268]. At the outset, it should be noted that "signs" are legally insufficient. The law required that the patient demonstrate conduct that presented a "substantial risk" of physical harm. "Signs" of "danger" are not enough. Plaintiffs experts fail to opine that actual conduct manifested a substantial risk of hmm [1265-1269]. As {A0173896.1 }31 discussed below, at best, this opinion amounts to a difference in medical judgment that was insufficient to oppose the motions for summary judgment. More importantly, the opinion is legally insufficient. Notably, most of the "signs" relied upon by plaintiff are "signs" or symptoms that are simply consistent with chronic alcoholism. Intoxication is not, in and of itself, enough to wanant involuntary treatment. To be sure, the statute that provides the criteria for involuntary treatment of "intoxicated" persons presupposes intoxication. For the statute to apply, however, the intoxication must rise to the level that it presents a "substantial risk of physical harm" (Mental Hygiene Law § 22.09). Neither of plaintiffs experts ever offered the opinion that the patient presented a "substantial risk of physical harm" as manifested by conduct that would satisfy the requirements of Mental Hygiene Law§ 22.09. While plaintiffs expert did state that the patient "took an overdose" of prescription medication, it is respectfully submitted that this opinion is legally insufficient to establish a "substantial risk of physical harm" as would be required by the statute (Mental Hygiene Law § 22.09 [2]). Plaintiffs expe1is failed to offer the opinion that the dosage taken by the patient placed the patient at any risk at all, let alone a "substantial risk" of physical harm. Indeed, the expert failed to miiculate the proper dose, and failed to offer any explanation of the "risks", if any, that would be associated with the alleged "overdose". Absent this information, it is {A0173895.1}32 submitted that the opm10n IS conclusory and legally insufficient. Stated differently, the fact that a patient took more than a recommended dosage of a medication, standing alone, fails to establish any risk. To analogize, if a patient takes 4 Advil, when the recommended dosage is 2, they are unlikely to suffer "physical harm". Baldly referring to a dosage as an "overdose" is simply not enough to establish a substantial risk of hann. An explanation of the basis of the conclusion would be required to be legally sufficient. As if this were not enough, plaintiff submitted an affidavit from Kris Sperry, M.D., a medical examiner to, among other things, comment on the use of Librium [1284-1286]. Dr. Sperry stopped far short of stating that any alleged "overdose" of Librium presented a medical risk to the patient. Instead, a plain reading of this affidavit establishes that it was merely Dr. Sperry's opinion that the use ofLibrium would "slow the plaintiff's metabolism of alcohol" [1286]. Dr. Sperry did not indicate that any alleged overdose presented a "substantial risk of hann" to the patient, as would have been required by the statute. As such, it is evident that plaintiff's proof fails to establish that the alleged "overdose" of Librium presented a "substantial risk of hmm" tantamount to threats of suicide or homicide as would have been required under that statute to detain the patient. Next, the expert cited the fact that the patient "sustained a head laceration requiring a CatS can" as a finding that would have supported involuntmy treatment. {A0173895.1)33 The record establishes that this was ordered simply because the patient presented with a black eye that occun·ed well prior to his presentation [98-99, 532, 1261]. The CT scan confirmed that the patient had no significant injuries [532]. Once again, this is not enough as a matter oflaw. Plaintiff next argues that the case should not have been dismissed because the Hospital allegedly violated various internal policies [Appellant's Brief, at 46- 52]. It is respectfully submitted that these claims are unsupported. For example, plaintiff argues that the patient should have been provided with one-to-one surveillance and "should not have been left unattended" pursuant to Hospital policies [Appellant's Brief, at 46-48]. This argument is without merit since one-to-one surveillance would not have prevented the patient from leaving unless the medical professionals had a legal means to detain him. Finally, plaintiff relies upon the fact that the patient "eloped from the hospital" to support this argument. This opinion is bootstrapping of the highest order and should be summarily rejected. With respect to plaintiff's argument that the Hospital should have contacted the police after the patient left the facility, it is respectfully submitted that the Hospital did not have such a legal obligation. As noted above, the patient was free to decline treatment and leave the facility since he did not demonstrate that he was an imminent danger to himself or others. To be sure, Dr. Chintapalli expressly {A0173896.1 }34 testified that he would only have called the police to compel the patient's return if he had sufficient justification to involuntarily detain the patient [536]. In any event, the argument that this would have potentially changed the outcome of the case is based entirely upon speculation. Accordingly, it is submitted that this argument is insufficient as a matter oflaw. III. To the extent that plaintiff's experts disagreed, their opinions, at best, established a difference in medical judgment that was insufficient to oppose the motion for summary judgment. It is respectfully submitted that, under the circumstances, any failure to involuntarily commit the patient would, at best, amount to a disagreement of professional judgment. A physician assessing a patient's mental state "is not required to achieve success in evety case" (Schrempfv. State, 66 NY2d 289, 295). A physician cannot be held liable for a mere error in professional judgment if he or she fails to predict that the patient will harm himself or others if released (see Weinreb v. Rice, 266 AD2d 454). Even if other physicians disagree with a decision to release, or as is the case here, not involuntarily confine, a patient, such "disagreement represents, at most, a difference of opinion among physicians, which is not sufficient to sustain a prima facie case of malpractice" (Danen v. Safier, 207 AD2d 473, 474; see also Fiederlein v. City of New York Health & Hosps. Corp., 80 AD2d 821). {AOm896.1 }35 In this case, Dr. Chintapalli demonstrated his pnma facie showing of entitlement to judgment as a matter of law, by averring that there was no basis for having involuntarily committed plaintiff, based upon the lack of clinical evidence that he posed a danger to himself or others. Dr. Chintapalli evaluated the patient "to detennine if he can go home or not" after he requested to leave the Hospital [543]. As a result ofthis examination, Dr. Chintapalli found that the patient could not be detained. To be sure, Dr. Chintapalli testified as follows: Q. Did these tests establish in your mind whether he was competent to make decisions in his own best interest? A. Yes. Q. And you determined that he was-- A. Yes. Q. --based upon those tests? A. Based upon a lot of things, not only the tests. Q. Tell me everything it was based on. A. Clinical judgment. [543-544]. More importantly, the record suppmis Dr. Chintapalli's judgment. As discussed above, during the presentation at SFHC, plaintiff had no homicidal or suicidal {A0173896.1 }36 ideations; he voiced no intention of hurting himself or anyone else. Dr. Chintapalli made the determination that the patient was rational [ 462]. When it came time to leave, the patient had the wherewithal to arrange for transportation [1263]. The patient was seen making arrangements to leave the premises after he advised the medical defendants that he no longer desired treatment [538]. As there was no clinical evidence requiring confinement, Dr. Chintapalli was not permitted to force the patient to remain on the premises. There is no evidence to establish that Dr. Chintapalli's care was something less than a professional medical determination or was not based on a careful examination and evaluation of his condition (see Bell v. New York City Health & Hasps. Corp., 90 AD2d 270). Accordingly, it is respectfully submitted that Dr. Chintapalli complied with the standard of care. For the reasons set forth herein, it is respectfully submitted that EPSNY was entitled to summary judgment dismissing the complaint and any cross-claims against it. {A0173895.1 }3 7 Conclusion WHEREFORE, it is respectfully submitted that this Honorable Court should: (1) AFFIRM the order of the Supreme Couti, Appellate Division, Second Depatiment, dismissing the claims against defendants; and (2) GRANT such other and further relief as it deems just and proper. DATED: January 3, 2013 Albany, New York Yours, etc., PHELAN, PHELAN & DANEK, LLP By: TIMOTHY S. BRENNAN Attorneys for Defendants, Emergency Physician Services of New York, P.C. 3 02 Washington A venue Extension Albany, New York 12203 Tel.: (518) 640-6900 {A0173896.1 }38