Kevin Kowalski, Appellant,v.St. Francis Hospital and Health Centers, et al., Respondents, et al., Defendants.BriefN.Y.May 28, 2013To be Argued by: ROBERT R. HASKINS (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 New York KEVIN KOWALSKI, Plaintiff-Appellant, – against – ST. FRANCIS HOSPITAL AND HEALTH CENTERS, CHANDRA CHINTAPALLI, M.D. and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, P.C., Defendants-Respondents, – and – TEAM HEALTH, INC. and JOHN DI RUSSO, Defendants. BRIEF FOR DEFENDANT-RESPONDENT ST. FRANCIS HOSPITAL S/H/A ST. FRANCIS HOSPITAL AND HEALTH CENTERS THE LAW OFFICES OF STEINBERG, SYMER & PLATT, LLP Attorneys for Defendant-Respondent St. Francis Hospital s/h/a St. Francis Hospital and Health Centers 27 Garden Street P.O. Box 632 Poughkeepsie, New York 12602 Tel.: (845) 471-4455 Fax: (845) 471-8065 Date Completed: December 21, 2012 i TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES .......................................................... iii PRELIMINARY STATEMENT .................................................... 1 COUNTER STATEMENT OF FACTS ......................................... 2 COUNTER STATEMENT OF QUESTIONS PRESENTED ........ 6 ARGUMENT ................................................................................. 7 I. THE MEDICAL DEFENDANT’S DID NOT BREACH ANY DUTY IN DETERMINATING IT WAS APPROPRIATE TO DISCHARGE THE APPELLANT................. 7 A. No Proof Has Been Put Forth Of An Applicable “Common Law” Standard And Applicable Statutory Mandates Were Followed By The Defendants-Respondents. 7 B. Plaintiff-Appellant’s Attempt to Show a Generalized Duty to Severely Intoxicated or Otherwise Incapacitated Persons That Would Apply Here Is Unavailing. 11 C. Plaintiff-Appellant Failed to Show Any Proof That His Condition When He Left the Hospital Would Have Mandated Against Discharge under the Aforementioned Standards. 13 D. Plaintiff-Appellant’s Misstatements and Misrepresentations of Hospital Policies Do Not Establish Any Duty of Care or Breach 15 E. Plaintiff-Appellant Improperly Attempts to Distinguish the Existent Case Law That Is Actually on Point. 19 ii II. PLAINTIFF-APPELLANT DID NOT PUT FORTH SUFFICIENT EVIDENTIARY PROOF AT THE TRIAL COURT LEVEL TO DEFEAT THE PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT .................... 22 A. Plaintiff-Appellant’s Experts Failed to Raise a Question of Fact Relying on Speculation and Conjecture That Lacked Any Causational Nexus. 22 B. Plaintiff-Appellant Has Not Put Forth Any Appropriate Proof Supporting a Direct Claim as Against the Defendant-Respondent St. Francis. 29 CONCLUSION ................................................................................... 31 iii TABLE OF AUTHORITIES Cases: Page No.: N.X.v. Cabrini Medical Center, 97 N.Y.2d 247 (2002) ........................... 8 Freeman v. St. Clare’s Hosp. and Health Center, 156 A.D.2d 300 (1st Dept. 1989) ............................................................................................. 8 Zophy v. State, 27 A.D.2d 414 (4th Dept. 1967), affirmed no opinion 22 N.Y.2d 921 (1968) ................................................................................... 8 Warner v. State of New York, 297 N.Y. 395 (1948) .................................... 10 Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) ........................................ 11 Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept. 1997) ............ 11 Ayala v. Mohave County, Arizona, 2008 U.S. Dist. LEXIS 93418 (Dist. Of Ariz. 2008) ..................................................................................... 11 Maldonado v. County of Suffolk, 10 A.D.3d 387 (2nd Dept. 2004) ............ 12 Fagan v. Atlantic Coast Line Railroad Co., 220 N.Y.301 (1917) ............... 12 Haber v. Cross County Hosp., 37 N.Y.2d 888 (1975) ................................. 15 Juseinoski v. N.Y. Hosp. Med. Ctr. of Queens, 18 A.D.3d 713 (2nd Dept. 2005), et al. ................................................................................... 15 Addington v. Texas, 441 U.S. 418, 425-426 (1979) ......................................... 19 Lawlor v. Lenox Hill Hosp., 74 A.D.3d 695 (1st Dept. 2010) Iv. den’d 15 N.Y.3d 719 (2010) .............................................................................. 20 Matter of Michael S., 166 Misc.2d 875 (Sup. Ct. Westchester Cty. 1995) .. 21 Mottau v. State of New York, 174 Misc.2d 884 (Ct. Of Claims 1997) ........ 21 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) .. 23 iv Romano v. Stanley, 90 N.Y.2d 444, 450; 661 N.Y.S.2d 589 (1997) ............... 25 Kornfeld v. NRX Technologies, Inc., 93 A.D.2d 772, 461 N.Y.S.2d 342 (1st Dept. 1983) ................................................................................................ 26 Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) ......... 26 1 PRELIMINARY STATEMENT Defendant-Respondent, St. Francis Hospital s/h/a St. Francis Hospital and Health Centers (“respondent” or “St. Francis”) submits this respondent’s brief in this appeal. This matter comes before this Court as a result of this Court’s Order, dated August 30, 2012, (Record on Appeal “[R]” 1575), granting leave to the plaintiff-appellant to appeal the Decision and Order of the Appellate Division of the Second Department, dated May 1, 2012, (R. 1576-1577), which granted summary judgment and dismissed the Complaint of the plaintiff-appellant as against defendants-respondents, St. Francis, Emergency Physician Services of New York, P.C. and Chandra Chintapalli, M.D. In this action, sounding in medical malpractice, except as to defendant John DiRusso, plaintiff-appellant, Kevin Kowalski, seeks to recover damages for personal injury, as against the defendants-respondents, which occurred when he was struck by the motor vehicle driven by defendant DiRusso on December 20, 2006. (R. 62-70 [Amended Verified Complaint]). Issue was joined by this Respondent by Verified Answer dated December 3, 2007 (R. 115-119). 2 COUNTER STATEMENT OF FACTS As to the factual background of this matter, Kevin Kowalski presented at the St. Francis Hospital Emergency Room at approximately 11:20 a.m. on December 20, 2006, having been driven to the hospital by a friend. (R. 984). He was a long term alcoholic who had made numerous attempts to detox and maintain sobriety in the past, but these efforts, along with private counseling and therapy had all failed. (R. 55, 203). These failures resulted in repeated episodes of binge drinking. (R. 206-207). He presented to the hospital on December 20th as a 48-year-old male who was intoxicated and had last been drinking two hours prior. On the way to the hospital he had reportedly taken six to eight 25 mg capsules of Librium, which he had taken on prior occasions to deal with withdrawal symptoms during detox. He gave a history of a detox admission four months previously and was voluntarily presenting and requesting a detox placement. (R. 170-172). Mr. Kowalski was triaged by nursing staff at 11:20 a.m. and he was noted to be alert, although smelling of alcohol and with some garbled speech. He also reported that he had been punched in the right eye. (R. 172). He was then seen by the emergency room physician, Dr. Chintapalli, at 11:50 a.m. A blood draw taken at that time showed a blood alcohol content of 3 .369, however, evaluation of the patient at that time by Dr. Chintapalli showed him to be awake, alert and oriented with no motor sensory deficit. Dr. Chintapalli also ordered a CT scan of the patient’s head. (R. 170-171). Mr. Kowalski was taken to radiology at 12:40 p.m. and returned to the emergency room at 1:30 p.m. On his return, it was documented by the nursing staff that he was able to ambulate to the bathroom without difficulty. (R. 173). During the time the plaintiff-appellant was at radiology, there was contact with Turning Point, a detox facility, which agreed to accept him for a further attempt at detox. (R. 167). During the wait for a ride to the detox facility, he changed his mind about wanting to go there. At 3:30 p.m., he removed the IV that had been placed, but not used, and informed Dr. Chintapalli that he had changed his mind and had decided to go home. (R. 167 and 173). Based on his evaluation, Dr. Chintapalli determined that discharge of the patient was appropriate at that time. (R. 529-530). It should be noted that, contrary to plaintiff-appellant’s recitation of the facts, there is no support in the record that he was “belligerent,” “ripped” his IV from his arm or that he received any more urgent care after the IV removal than the placement of a bandage, as would be usual upon removal of an IV. Mr. Kowalski was advised to have someone pick him up and informed the 4 nursing staff in the emergency room that a friend was coming to pick him up after being observed walking about the department and using a telephone. At that point, he had called his friend, Jason Herring, who had brought him to the hospital, to come pick him up, which Mr. Herring agreed to do. (R. 1263). He was requested to remain in the department until his friend arrived. (R. 167). At 3:45, he was noted to be gone from his bed in the emergency room. At about that time, one of the nurses from the department saw him walking through the hospital lobby. She observed him to be alert, coherent and walking with a stable gait. She asked him if he was going to Turning Point and he informed her that no, he was not, a friend of his was picking him up. (R. 174, 175, 672, and 875-879). The nursing staff in the department, when Mr. Kowalski was observed to be no longer present, asked Dr. Chintapalli whether he wanted the police notified that he had left without being officially discharged. Dr. Chintapalli said no, but security was requested to let the department know if they saw him on the grounds. (R. 175). After leaving the facility, Mr. Kowalski apparently ended up in the vicinity of a small strip mall located in the neighborhood of the hospital. (R. 250-251). Approximately two hours later, at 5:33 p.m., he was crossing Route 9 near the 5 south entrance to Marist College when he was struck by a car, suffering injuries that rendered him a quadriplegic (R. 1450). He was returned to St. Francis Hospital for care and a further blood alcohol content done at 5:55 p.m. showed a level of .350. (R. 186 and 183). 6 COUNTER STATEMENT OF QUESTIONS PRESENTED 1. Whether plaintiff-appellant’s suit was properly dismissed by the Appellate Division of the Second Department, as a matter of law, on the grounds that the defendants-respondents had no legal authority to involuntarily confine him to the hospital facility where he had voluntarily presented for treatment of alcoholism. It is respectfully submitted that this Court should affirm. 2. Whether plaintiff-appellant’s expert affidavits failed to raise a question of fact sufficient to defeat the right of the defendants-respondents to summary judgment. The Appellate Division did not reach this issue as it had been rendered academic. It is respectfully submitted that this Court could affirm the dismissal on these grounds. 7 ARGUMENT POINT I THE MEDICAL DEFENDANTS DID NOT BREACH ANY DUTY IN DETERMINATING IT WAS APPROPRIATE TO DISCHARGE THE APPELLANT Plaintiff-Appellant has attempted to set forth that the medical defendants had a duty under the “common law” to retain him at the hospital instead of allowing him to be discharged, while ignoring the fact that to discharge him was entirely appropriate under both the applicable legal standards, the relevant hospital policies and the facts of this case as set forth in the record. In attempting to do so, plaintiff-appellant cites no case law that is on point with this particular fact pattern, attempts to improperly conflate case law regarding inpatient psychiatric patients and individuals under the custody of law enforcement officials with the existent circumstances, mistakes and misapplies the relevant hospital policies and ignores the only actual evidence in the record as to his condition and capabilities at the time he left the facility. A. No Proof Has Been Put Forth Of An Applicable “Common Law” Standard And Applicable Statutory Mandates Were Followed By The Defendants- Respondents. Plaintiff-Appellant cites to numerous cases that discuss the level of care and 8 attendant duty that relate to inpatients in medical facilities, such as N.X.v. Cabrini Medical Center, 97 N.Y.2d 247 (2002); Freeman v. St. Clare’s Hosp. and Health Center, 156 A.D.2d 300 (1st Dept. 1989); and Zophy v. State, 27 A.D.2d 414 (4th Dept. 1967), affirmed no opinion 22 N.Y.2d 921 (1968). Initially, all these cases relate to an inpatient setting and do not in any respect address the issue of involuntary retention of a voluntary patient who has expressed a desire to refuse treatment and wishes to leave the facility, most particularly where such treatment was for alcoholism. This lack of applicability is evident when one considers the fact that New York State actually has a statutory and regulatory scheme that specifically addresses the retention of intoxicated individuals who voluntarily seek assistance and treatment. It is respectfully submitted that this scheme, as set forth under Article 22 of the New York State Mental Hygiene Law and its attendant regulations has established the policy of New York State towards individuals in such circumstances and superseded any ill defined common law right that the plaintiff-appellant is seeking to assert by extension. With regard to this legislative scheme, resort is first had to §22.09 of the New York State Mental Hygiene Law, which relates to “Emergency Services for persons intoxicated, impaired, or incapacitated by alcohol and/or substances.” 9 §22.09(d) specifically provides that a person who comes voluntarily to a facility may be “sent to his or her home,” and §22.09(e) further provides that, “(i)f the examining physician determines that such person is not capacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or others, he or she must be released. (Emphasis supplied). Under the statute, likelihood of harm to self or others is specifically defined as: “(i) a substantial risk of physical harm 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 harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.” Mental Hygiene Law §2209(e). Clearly, New York State has adopted both a policy and philosophy that treatment for alcoholism should best proceed under a voluntary model, while being aware that some patients present in such a fashion that they evidence a likelihood of harm as defined in the statute. Whether this is something that is existent to the extent that it could interfere with the mandated release of the patient is left to the clinical judgment of the examining physician, in this case Dr. Chintapalli, under the constraints of the applicable law which requires a specific showing of a likelihood of harm. Notably, on this issue of there being a “common law” duty, plaintiff- 10 appellant below attempted to rely on Warner v. State of New York, 297 N.Y. 395 (1948) concerning a patient who might potentially cause injury to self or others. The case, which deals with the power to restrain mental patients, recognized that there was an existent common law “power” to restrain a mental patient, but differentiated that from a duty, stating: “(t)he State has enacted legislation dealing with the admission procedures to be followed in committing and confining the mentally ill (Mental Hygiene Law, art. 5), but that did not affect the existence of the common-law privilege of summary arrest and detention (what is being considered in Warner). The Statute did not abolish or curtal the power in a proper case, nor did it, by the same token, enlarge the area of its exercise. As before, only where immediate and precipitous action is demanded to prevent present and imminent harm, may the power be exercised.” Warner at 402. (Emphasis supplied). Plaintiff-Appellant’s papers on no level have ever made a showing as to how there was ever any indication of a present or imminent harm being manifested that would have justified the restriction on his individual freedom that is posited by him as being not only appropriate, but required. A further citation from Warner is pertinent in light of the clearly existent statutory scheme in this matter, and the fact that it was obviously adhered to. “Where personal freedom is at stake, insistence upon strict and literal compliance with statutory provisions is not only reasonable but essential.” Warner at 404. Plaintiff-Appellant voluntarily presented for a referral for alcohol treatment, 11 he was not in custody and his right to accept or refuse such treatment in this instance has never been questioned, and when he decided to refuse treatment, the clear requirements of New York State law, as to his ability to assert his liberty, came into play and were appropriately followed. B. Plaintiff-Appellant’s Attempt to Show a Generalized Duty to Severely Intoxicated or Otherwise Incapacitated Persons That Would Apply Here Is Unavailing. Plaintiff-Appellant initially cites to three cases where individuals who are intoxicated are taken into custody by the police. Parvi v. City of Kingston, 41 N.Y.2d 553 (1977); Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept. 1997), and Ayala v. Mohave County, Arizona, 2008 U.S. Dist. LEXIS 93418 (Dist. Of Ariz. 2008). Notably, these cases relate to the arrest powers of police, who would have authority, under law, to involuntarily maintain custody over an individual. The police defendants in these cases who had legal authority, certainly not possessed by Dr. Chintapalli, instead chose to affirmatively place their charges in situations of peril after utilizing their custodial power to remove them from more secure locations. It is also worthy of recognition that plaintiff-appellant has shown no way in which his choice to leave the security of the hospital, and his eventual presence at 12 the well-lit intersection, with sidewalks, cross-walks and a traffic light, where the injury here took place would analogize with the fact pattern of any of these cited cases. (R. 1450-1451). Certainly, these cases, upon analysis, bear no relationship to the matter at hand, which actually is more akin to Maldonado v. County of Suffolk, 10 A.D.3d 387 (2nd Dept. 2004). The Court in Maldonado found that there was no obligation to detain and watch over an individual who was in a safe place and had the means and ability to have someone come and take them home. Maldonado at 388. Here, the plaintiff-appellant was awaiting a ride home that was on route while he was in a secure public space. By the standard of Maldonado, no additional duty would attach to Dr. Chintapalli. Plaintiff-Appellant also includes a citation to Fagan v. Atlantic Coast Line Railroad Co., 220 N.Y.301 (1917), a case regarding the duty of a common carrier to an intoxicated passenger who could neither walk unaided or converse. Aside from this obvious distinction from the present matter, the holding that the passenger should have been deposited at the depot to which he had a ticket, rather than being sat on a plank by the tracks some distance away, would seem absent applicable guidance here. 13 C. Plaintiff-Appellant Failed to Show Any Proof That His Condition When He Left the Hospital Would Have Mandated Against Discharge under the Aforementioned Standards. The Brief of the plaintiff-appellant, and the Record herein, fail to provide any basis to assume that he exhibited, at the time he left the hospital, behavior that evidenced a likelihood of harm to himself or others. While the Record does show that Mr. Kowalski did smell of alcohol and had garbled speech when he first presented at the hospital, even at the point he was found to be alert and oriented and was conversant with the staff. (R. 170-173). While he had no interest in sitting in a hospital bed with the rails up or wearing a hospital gown (R. 633), and was generally unpleasant to the nursing staff (R. 647), these behaviors have nowhere been shown or held to be evidence of an imminent likelihood of harm. Importantly, Mr. Kowalski was neither suicidal at the time of his presentation (R. 213), nor did he threaten anyone (R. 172). Note should be made of plaintiff-appellant’s mention in his brief of a prior admission where he initially claimed to have suicidal thoughts and later admitted to have lied about that (R. 1115). The lack of temporal connection to that prior admission, and the clear admission by Mr. Kowalski that he was not suicidal at the time of the subject 14 admission, does not provide any support for a claim that he presented an imminent likelihood of harm at the point when he walked out of the hospital door. In fact, plaintiff-appellant’s repeated attempts to claim that he was, in some fashion, irrational or incapacitated in the emergency department and that this was somehow evidence that he was a danger to himself consists entirely of references that improperly conflate his condition on initial presentation with a collection of either misrepresented, misstated or innocuous subsequent events. He provides no evidence as to his actual condition and capabilities at the relevant time, when he was being discharged, many hours later. Importantly, the only expert opinion as to the condition of Mr. Kowalski at the time he left the hospital was that rendered by Dr. Philip R. Muskin, the psychiatric expert on behalf of defendant-respondent, Dr. Chintapalli. Dr. Muskin unequivocally testified that “(t)he record shows that Kowalski did not pose an imminent threat to himself or others as of the time he left the Hospital” (R. 49) (Emphasis supplied). This is the only expert opinion that addressed the uncontroverted facts that Mr. Kowalski was coherent, oriented and walking with a steady gait at the time he left the facility and Dr. Muskin opined that this presentation provided clear evidence that he was not at that time a danger to himself or others and that he was a proper candidate for discharge. (R. 49-52). 15 D. Plaintiff-Appellant’s Misstatements and Misrepresentations of Hospital Policies Do Not Establish Any Duty of Care or Breach. Plaintiff-Appellant has repeatedly cited to various policies of St. Francis and has claimed that such policies in some way both establish a duty to him and a failure to act in accordance with such duty. However, these continued assertions have both misstated and misrepresented the subject policies in a fashion that entirely destroys any value or relevance of such claims. The policies themselves were initially set forth in plaintiff-appellant’s opposition to the original motions seeking summary judgment. (R. 1454-1463). Plaintiff-Appellant’s expert, Dr. Joseph Yates, then opined as to the claimed applicability of these policies in his Affidavit in support of the original opposition. (R. 1265-1269). Plaintiff-Appellant now attempts to resurrect these claims in his Brief at pp. 46-52, absent any reference to the expert opinion that tried to relate them to the facts of this matter, attempting to rely on case law, largely relating to failure to place bed rails, that has held a violation of rules can be some evidence of negligence. Haber v. Cross County Hosp., 37 N.Y.2d 888 (1975); Juseinoski v. N.Y. Hosp. Med. Ctr. of Queens, 18 A.D.3d 713 (2nd Dept. 2005), et al. What plaintiff-appellant fails to show, and has failed to show from their 16 initial opposition is that there was in fact a violation that proximately caused any injury. Plaintiff-Appellant first refers to the issue of potential one on one surveillance of him and refers to the St. Francis policy entitled “Care of the Psychiatric Patient Upon Arrival To The Emergency Department.” (R. 1454). Of course, as was pointed out below, (R. 1562), where plaintiff-appellant neglected to even include the name of the policy, plaintiff-appellant has provided no proof that he was classified or classifiable as a “psychiatric” patient upon his presentation or that the policy would have any relevance to him or his stay at St. Francis. Notably, plaintiff-appellant is again throwing out the red herring that one on one surveillance would have prevented him from leaving the hospital which ignores the fact that he was appropriately being discharged and the hospital lacked authority to involuntarily retain him. Plaintiff-Appellant then makes reference to Policy 21.2, which provides: A. Children, confused or critical patients or potentially unstable patients by history will not be left unattended while in the emergency department. Again, plaintiff-appellant failed to provide expert proof below as to how he would fall within the ambit of this policy. The Affidavit of Dr. Yates (R. 1266) does not provide any connection between the policy and Mr. Kowalski. Certainly, 17 the record documents him as alert and oriented, not confused. (R. 170-173). Did Dr. Yates believe that he was “potentially unstable by history” in some regard so that the policy might be applicable? We have no idea because Dr. Yates does not say so and makes no effort to provide this linkage. (R. 1265-1269). Plaintiff-Appellant’s counsel attempts in the Brief to get around this point by claiming that, irrespective of this failure of expert proof, a jury should be allowed to decide on the applicability of this policy because he was a “‘very agitated’ patient who ripped an IV line out of his own arm.” Brief at 48. The only problem with this scenario is that this claimed assertion of fact was entirely crafted by counsel with no support in the Record. The only evidence as to Mr. Kowalski’s behavior in the emergency department is that he was specifically not agitated. (R. 647). Although he was apparently agitated with Mr. Herring on the phone, who was not coming to pick him up as quickly as he desired, there is no indication that such behavior was manifest in the department. (R. 1263). As to the “ripping” out of his IV, there is no evidence in the record that, when he removed his IV, he did so in a violent or hazardous fashion. (R. 632). Plaintiff-Appellant then makes reference to the Alcohol Management policy of St. Francis, and again fails to show any violation of such policy that would have 18 mandated against his discharge. (R. 1459-1460). It is clear that the pending discharge of the patient was in perfect accord with the policy, as the evidence has clearly shown, as previously noted, that he could walk unassisted, had a destination to go to and wasn’t driving. Additionally, there has been no evidence presented that the patient was ”belligerent or agitated and threatening to harm himself/herself or others,” as would have initiated further measures under the policy. (R. 1459). Finally, plaintiff-appellant again makes a reference to competency while, yet again, failing to provide the full name of the policy which is “Patients Leaving Against Medical Advice Documentation Guideline.” Plaintiff-Appellant has still not shown how a policy as to necessary chart documentation regarding patients who leave against advice relates to whether he was appropriately scheduled for discharge. In total, the various policy references were never shown by plaintiff- appellant’s experts below to be either relevant, not followed or causally connected to any claimed injury, and do not show a breach of any duty now that would provide a cognizable claim. 19 E. Plaintiff-Appellant Improperly Attempts to Distinguish the Existent Case Law That Is Actually on Point. The issue before the Court here, as to the parameters within which a patient who voluntarily presents to a hospital facility for alcoholism treatment can be involuntarily retained on the basis of intoxication, has not been extensively litigated. As has been set forth herein, an appropriate determination on this issue involves consideration of both the personal liberty of the individual who has voluntarily presented for treatment and the statutory scheme that has been put into place by the State of New York through the Mental Hygiene Law. The statutory scheme has been previously discussed with regard to the fact that it does not provide for retention of an individual absent of showing of imminent harm to himself or others, a showing that has not been made here and, under the clear language of Mental Hygiene Law §22.09(e), such a patient must be released if they choose to leave. As to the question of liberty, it is respectfully submitted that the standard set down by the U.S. Supreme Court in Addington v. Texas, 441 U.S. 418, 425-426 (1979) provides the clearest guidance here. The Court held that, where it is proposed to hold an individual for involuntary treatment, there must be clear and 20 convincing evidence that the individual poses a risk to himself or others. Here, that standard has not been met. Yes, Mr. Kowalski was an obnoxious and profane individual who had no patience with hospital procedures and decided to remove his own IV; but he was also, when he left, alert, oriented, coherent and walking in a normal fashion. He also had a friend on route to pick him up, no car to get behind the wheel of and had never made any threats, either as to himself or anyone else. That is what the unrefuted evidence in this matter has shown and what has been put forth to show a supposed risk has, at best, consisted of supposition, misrepresentation and speculation, certainly not the type of clear and convincing evidence that would have been necessary to defeat the prima facie showing of the defendant-respondents. As to the case law upon which this matter was decided by the Appellate Division Second Department, these cases provide clear guidance as to the limitations presented to the ability to involuntarily retain an individual solely on the basis of intoxication. Lawlor v. Lenox Hill Hosp., 74 A.D.3d 695 (1st Dept. 2010), Iv. den’d 15 N.Y.3d 719 (2010) is clear in its holding that there is no legal authority to confine a voluntary patient solely on the basis of alcoholism. In order not to belabor the Court, reference is made to the analysis of defendant-respondent Chintapalli below 21 as to how Lawlor and the present matter are clearly analogous, which shows why the Appellate Division Second Department appropriately cited to Lawlor as part of the rationale for its’ decision. (R. 1480-1484 and 1499-1509). The patient in Lawlor, a Mr. Herlihy, was a long term alcoholic who continued to engage in self destructive behavior until the point where he suffered an incapacitating injury. The plaintiff’s claim in the case was that he should have been kept at the hospital and treated. The finding by the Court in Lawlor was that, to have done so, would have constituted an impermissible imposition on the liberty interests of the alcoholic patient. (R. 1506). There is no question this is analogous to the matter at hand. See also, Matter of Michael S., 166 Misc.2d 875 (Sup. Ct. Westchester Cty. 1995). As to Mottau v. State of New York, 174 Misc.2d 884 (Ct. Of Claims 1997), the case concerned an individual who was allowed to leave a treatment facility in an intoxicated state and was thereafter struck by a car. The Court held that there was no duty or applicable authority under §21.09 of the Mental Hygiene Law to retain such an individual who had rejected an offer of transfer to an appropriate treatment facility. (The Court also specifically noted that the statute authorized sending such a patient home). Mottau at 887. Plaintiff-Appellant attempts to claim that Mottau, instead, actually supports 22 the existence of a duty on the part of the hospital here by mischaracterizing the decision at page 39 of plaintiff-appellant’s Brief and attempting to claim that the Court was making a reference to a medical facility (such as the defendant here) when the Court was clearly and specifically referring to a “psychiatric facility” (emphasis supplied). Mottau at 880-881. It is respectfully submitted that plaintiff-appellant brought forth no case law on point with the applicable issues in this matter, with respect to the duties of a medical provider or facility towards an intoxicated individual who has voluntarily presented for treatment. Defendant-Respondents have alleged that there is no authority to hold such an individual who wishes to leave and the case law that has looked at this specific issue is supportive of that interpretation and in accord with the Decision of the Appellate Division below. POINT II PLAINTIFF-APPELLANT DID NOT PUT FORTH SUFFICIENT EVIDENTIARY PROOF AT THE TRIAL COURT LEVEL TO DEFEAT THE PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT A. Plaintiff-Appellant’s Experts Failed to Raise a Question of Fact Relying on Speculation and Conjecture That Lacked Any Causational Nexus. Defendants-Respondents were required, in order to prevail on their initial 23 motion seeking summary judgment, to put forth evidentiary proof, in admissible form, sufficient to show entitlement. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). Once that was accomplished the burden would shift to plaintiff-appellant to put forth admissible evidence showing that a question of fact exists. Zuckerman, id. In support of their motions, defendants-respondents submitted the affidavits of various medical experts, (R. 43-60 and 1000-1003), as well as citations to case law pertinent to the matter at hand. The trial Court below made no finding that the submission by the defendants-respondents was in any respect inadequate or failed to meet their burden of proof. Rather, the trial Court looked to the expert affidavits submitted by plaintiff-appellant, finding that such submissions contradicted the opinions of the defendants-respondents’ experts and created a conflict requiring resolution by a finder of fact. (R. 17-18). Irrespective of the question as to whether this motion practice should have been initially resolved as a matter of law, it is respectfully submitted that plaintiff- appellant’s expert affidavits did not comply with the Zuckerman standard of providing admissible proof and, on that basis, should have been disregarded by the trial Court below, resulting in award of summary judgment to the defendants- respondents. 24 While the Court below noted the expert affidavits of plaintiff-appellant were refuted by the defendants-respondents, (R. 14), the decision did not reflect the relevant case law applicable to such a refutation of plaintiff-appellant’s submission, nor did it acknowledge the factual errors, misstatements and irrelevancies that left plaintiff-appellant’s expert affidavits devoid of evidentiary worth. The Court is referred to the Record at page 1557 to 1566 where a detailed analysis of the affidavits, along with the applicable case law and factual deficiencies, is set forth at length. Looking at such analysis, it becomes very evident that the merit and evidentiary value of plaintiff-appellant’s expert affidavits does not survive scrutiny. Referring initially to the affidavit of plaintiff-appellant’s forensic pathologist, Dr. Kriss Sperry, it is obvious that his opinions are premised on impermissible speculation and, as a matter of law, lack the requisite foundation and basis required to give them evidentiary weight. In reference to Dr. Sperry’s opinions, and whether they created a “conflict of medical opinion,” the trial Court below cited his view that the plaintiff consumed 5ounces of “distilled spirits” immediately prior to his presentation at the hospital; which would have not shown up in his initial blood alcohol count, that 25 the interaction between the alcohol and benzodiazepine he had taken would have resulted in significant impairment and that plaintiff was not provided with the appropriate standard of care. (R. 16-17). There are multiple fatal problems with his holding and opinion. The first is that it is premised on plaintiff drinking 5 ounces of alcohol immediately prior to the presentation, something that is not supported by anything in the record, (R. 1557), rendering everything thereafter as rank speculation. The second problem emerges with respect to Dr. Sperry’s opinions as to the metabolization of alcohol and benzodiazepine. These suppositions by Dr. Sperry, under New York law, lack the required foundational scientific basis which means they also must be disregarded. Romano v. Stanley, 90 N.Y.2d 444, 450; 661 N.Y.S.2d 589 (1997). Finally, with regard to the plaintiff’s observable level of impairment, the Court of Appeals in Romano explicitly stated both that blood alcohol level is not an adequate indicia for making assumptions about observable impairment and that a clinical forensic pathologist, such as Dr. Sperry, is not qualified to provide evidence as to the “manifestations of intoxication in live individuals.” Romano at 452. Dr. Sperry’s impermissibly vague conclusion that “defendants did not 26 provide the plaintiff with the appropriate standard of care,” (R. 1285), which it should be noted never elucidates the standard of care which should have been observed, as a result, becomes not a source of a conflict of medical opinion, but instead mere speculation without the foundational basis required under New York law to give it evidentiary worth. In total, when looked at through the prism of the applicable law, not one shred of actual evidentiary proof can be found in Dr. Sperry’s affidavit. The affidavits of the other two experts submitted by plaintiff-appellant are similarly lacking in required foundational basis and rife with factual misrepresentations and studied omissions which render them not a source of factual conflict, but rather a sham intended to convey the appearance of a factual dispute. Kornfeld v. NRX Technologies, Inc., 93 A.D.2d 772, 461 N.Y.S.2d 342 (1st Dept. 1983). With regard to the plaintiff-appellant’s psychiatrist/neurologist expert, Dr. I. Jack Abramson, he similarly spoke of the plaintiff’s “high level of impairment” and cited various matters that he claimed supported such opinion. (R. 1278-1280). Again, an analysis of his opinion shows it to be without the requisite factual and scientific basis and riddled with misstatement, misrepresentation and entirely irrelevant matter, depriving it of any evidentiary worth. Alvarez v. Prospect 27 Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Romano, supra. (R. 1559- 1561). The plaintiff-appellant’s final expert is Dr. Joseph Yates, an emergency room physician from Chicago. Dr. Yates based the initial thrust of his opinion upon a claim that various hospital policies were ignored or violated. Unfortunately, the mischaracterizations, omissions and reworking of the policies by Dr. Yates, hopefully unintentional, resulted in his claims regarding the policies being totally lacking in probative value. (R. 1561-1564). The remainder of his affidavit consisted of unsupported speculation as to the level of intoxication Mr. Kowalski evidenced when he left the facility, Romano, id. (R. 1564-1565) and an assertion that a search should have been conducted so Mr. Kowalski “could be returned to the hospital.” (R. 1269). This last point deserves particular note as it highlights the red herring aspect of the bulk of the plaintiff-appellant’s expert submissions, insofar as claims relating to such issues as returning Mr. Kowalski to the hospital are entirely irrelevant if the defendants had no power to keep him there. Importantly, one area where the plaintiff-appellant’s experts are uniformly silent is what were the actual condition and capabilities of Mr. Kowalski at the time that he left the hospital, over four hours after his arrival and two hours prior 28 to his unfortunate accident. This leaves totally unchallenged the Affidavit of Dr. Philip Muskin and his opinion that, at the time he left the hospital, Mr. Kowalski did not pose an imminent danger to himself or others. (R. 43-52). It is also crucial to note that the affidavits of plaintiff-appellant’s various out of state experts do not, in any respect, address or refute the issue raised by defendants-respondents’ experts, that the medical defendants, under New York practice, laws and regulations, lacked any capacity to compel the plaintiff to remain if he decided he wanted to leave, as he did here. The failure to address this issue is critical, for without that capacity, the other issues raised; such as one on one observation or further testing, become mere irrelevancies. The plaintiff wanted to leave, he had every right to do so and the defendants had no power to prevent him from doing so. Because of these facts and the applicable case law, it is respectfully submitted that the plaintiff-appellant utterly failed to sustain his burden under Zuckerman, supra and did not produce admissible proof which would defeat the entitlement of the defendants-respondents to summary judgment and dismissal of this action, which should have been awarded in the Court below. 29 B. Plaintiff-Appellant Has Not Put Forth Any Appropriate Proof Supporting a Direct Claim as Against the Defendant-Respondent St. Francis. The salient claims of the plaintiff-appellant in this matter, that he shouldn’t have been viewed as appropriate for discharge by Dr. Chintapalli and that Dr. Chintapalli should have had either the police or security bring him back when he left, do not constitute direct claims as against St. Francis. (R. 1265-1309). Further, the Affidavits of plaintiff-appellant’s experts only allege, with regard to claims against St. Francis, allowing him to leave the hospital, failing to institute a search and the above discussed deviations from policies. None of these is sufficient to constitute a direct claim as against St. Francis. As was discussed, the claimed policy deviations are either incorrect or rely on a misstatement or misinterpretation of the policies. Even absent that fact, the experts have not delineated any policies as implicating nursing care or in any respect discussed what the nursing staff should or should not have done. Concerning the expert’s belief that Mr. Kowalski should not have been allowed to leave the hospital, or that he should have thereafter been found and brought back, plaintiff-appellant’s experts do not in any respect refute or contradict the opinion of the hospital’s nursing expert that the nursing staff was 30 without the power or authority to accomplish either, or that there was no deviation from appropriate standards as to the nursing care provided. (R. 1000-1006). For these reasons, it is respectfully submitted that plaintiff-appellant failed below to refute the prima facie entitlement of defendant-respondent St. Francis Hospital to summary judgment. 31 CONCLUSION The Appellate Division of the Second Department properly dismissed this matter and granted summary judgment to the defendants-respondents. Respectfully Submitted, The Law Offices of STEINBERG, SYMER & PLATT, LLP _________________________________ By: Robert R. Haskins Attorneys for Defendant-Respondent ST. FRANCIS HOSPITAL s/h/a ST. FRANCIS HOSPITAL AND HEALTH CENTERS 27 Garden Street P.O. Box 632 Poughkeepsie, New York 12602 (845) 471-4455