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May 19, 1961

Isadore SKLARSH, as Administrator of the Goods, Chattels and Credits of Al Sklar, Deceased, Plaintiff,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: BYERS

This is a Federal Tort Claim case instituted by the administrator and brother of Al Sklar, deceased, against the United States. The complaint was filed February 17, 1959 and originally listed as co-defendants the Director of the Veterans Administration and certain doctors and nurses connected with the United States Veterans Administration hospital at First Avenue and 24th Street, in the Borough of Manhattan.

By stipulation of July 14, 1959, the action was dismissed as to all such individuals, and proceeded to trial as against the Government only.

 The decedent was a mental patient in the said hospital who had threatened to commit suicide, and is deemed for present purposes to have done so, on October 15, 1958 at some time between 10:30 and 11:00 p.m. There was no eyewitness to the episode, but the discovery of his body at some time around 11:00 p.m. outside the building and somewhat in line with a window in his room on the tenth floor of the hospital, was consistent with such a happening.

 Sklar had been admitted on January 16, 1958 and was transferred to the 'closed' ward on the 18th floor eleven days later. He was transferred to the open ward on April 10, 1958 and there remained until August 15th, when he was returned to the closed ward. Prior to the latter date he had been allowed to return to his home for brief visits on weekend 'passes.'

 His stay in the closed ward continued until October 8, 1958 when he was moved to the surgical ward where he was operated on the following day to relieve a serious condition of the adrenal glands. The operating surgeon (Dr. Sax) described it as a 'Cushing Syndrome.' Only the gland on the left side was removed because of hemorrhage, although the original intent had been also to remove the one on the right.

 This means that the surgical procedure had not been concluded, and the patient was returned to his bed in a private room, to recuperate for the second half of the operation.

 He was a bed patient for the ensuing four or five days, though ambulatory on October 15th when Dr. Sax walked with him a few steps.

 It should be said that the surgical ward could accommodate forty patients and was full on these days. This suggests that the nursing force in this ward had many and constant duties.

 Dr. Sax talked with the decedent at about 6:00 o'clock on the 15th and observed nothing to cause apprehension or to suggest that he address a word of warning to those who were in the nurses' station adjoining the patient's room.

 Dr. Sax was aware of the decedent's threats of suicide, and was familiar with the special requirements concerning patients who had been transferred from the closed to the surgical ward. He testified as to the recognized standards of supervision in such cases, and said: 'We gave this patient even more than was required.'

 During the post-operative period, Dr. Silver visited decedent every two or three hours during the daytime; he always found the two windows locked, and never saw one open. His opinion was that the patient, who was 5' 7" in height and weighed 160 pounds, probably could not have raised the window which was later found open, because of the extra effort that would have been so required.

 Dr. Silver had discussed with Dr. Meade of the psychiatric staff, the removal of decedent back to the closed ward (pending the second operation) and neither was of the opinion that it was necessary.

 Dr. Waltzer, the resident psychiatrist, was familiar with this patient's mental condition, and with the type of supervision exercised while he was in the surgical ward; in his opinion it was adequate and it was not necessary to assign someone to act as a bodyguard for the decedent in view of the constantly open door of his room alongside the nurses' station, and the frequent visits to his room while the patient was there, by the doctors and nurses on duty. Moreover it was his belief that the mental depression itself would be somewhat favorably affected as the result of the adrenal operation. He was aware of Dr. Carr's warning (he was of the psychiatric staff) that twenty-four hour supervision would be required while the patient was in the surgical ward but was skeptical about the seriousness of the latter's suicide threats.

 If it could be seen from the testimony that the supervision fell short of reasonable requirements, this difference of opinion between two members of the same staff might present a more serious ...

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