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MARY L. KELLY ET AL. v. STATE NEW YORK (06/14/68)

COURT OF CLAIMS OF NEW YORK Claim No. 46464 1968.NY.42107 <http://www.versuslaw.com>; 293 N.Y.S.2d 208; 57 Misc. 2d 466 June 14, 1968 MARY L. KELLY ET AL., CLAIMANTS,v.STATE OF NEW YORK, DEFENDANT Vincent P. Di Stephan for claimants. Louis J. Lefkowitz, Attorney-General (Allen J. Goodman of counsel), for defendant. Caroline K. Simon, J. Author: Simon


Caroline K. Simon, J.

Author: Simon

 Mrs. Mary L. Kelly, a Queens housewife, left her home where she lived with her husband at about 5:00 p.m. on Thursday, January 27, 1966. She testified that she had experienced pains in her stomach and nausea, and went to the emergency clinic of the Queens Hospital Center for treatment. Her husband, a pharmacist, was at work at the time. Mrs. Kelly told the admitting clerk that she might have been poisoned.

She was asked to wait until an interne arrived. When the interne came he noted her personal history on a report form, interviewed her and then asked her to wait for another doctor. When the second doctor arrived, he identified himself as a psychiatrist, and questioned her about the poisoning aspect of her problem. Mrs. Kelly told him that she believed her husband and "a group" poisoned her.

The psychiatrist recorded the interview and left, asking her to wait again. She did so, telephoning her husband in the interval. Mr. Kelly arrived at the hospital and spoke to his wife in the corridor, asking her to come home with him, but she replied that she wanted to stay and see if she had been poisoned.

Thereafter upon the certification of two Queens Hospital Center physicians, and pursuant to section 70 (subd. 1, par. [c]) and section 72 (subd. 1) of the Mental Hygiene Law, Mrs. Kelly was transferred by ambulance, accompanied by an attendant and a policeman, to Creedmoor State Hospital in Queens Village at about 9:00 p.m. that evening.

Upon admission to the latter institution, she was examined and her condition was diagnosed as "involutional psychosis, paranoid type". Mrs. Kelly remained at Creedmoor from January 27 to February 3, on which latter day she was released with the consent of the Creedmoor authorities in her husband's custody and under the care of her own family physician.

Mr. and Mrs. Kelly have filed this claim, alleging negligence of the State of New York in

"(a) * * * accepting and taking custody of Mary L. Kelly as an involuntary patient in Creedmoor State Hospital without acquiring, examining or requiring proper certification for such purpose; "(b) for malpractice of the personnel of said hospital in retaining said Mary L. Kelly without medical cause or need and while knowing and believing said Mary L. Kelly to be harmless to herself or others;

"(c) for false arrest * * * placing her in a ward for violent patients, retaining her in custody without her permission and consent * * *

"(d) for false imprisonment * * * detaining her at said hospital without cause or reason and without proper certification * * *

"(e) for wrongful detention * * * by the state in that said arrest, custody and imprisonment were without proper certification, without court order * * * Mary L. Kelly was denied an opportunity to see or contact a member of her family or her attorney for four days after her arrest and in spite of her husband presenting himself at said hospital and demanding to see his wife".

The claim has been timely filed in the office of the Attorney-General and with the Clerk of the Court of Claims on April 26, 1966. It seeks $75,000 for Mrs. Kelly's pain and suffering, $25,000 for Mr. Kelly's loss of his wife's services and consortium, and $113 in medical expenses, hospital bills and medicine. This claim has neither been assigned, nor tried, nor brought before any other court or tribunal, but a suit for illegal detention and malpractice, based upon some of the same facts and some similar allegations is pending in the Supreme Court against the City of New York.

It is claimants' contention that Mrs. Kelly was improperly committed to Creedmoor because of its failure to comply fully with the provisions of section 70 (subd. 1, par. [c]) and section 72 (subd. 1) of the Mental Hygiene Law, which requires that two physicians certify to the mental illness warranting hospitalization. Chapter 738 of the Laws of 1964 changed section 70 (subd. 1, par. [c]) by increasing the number of physicians required from one to two.

In the instant case, two copies of form 471a, titled "Examination by an Examining Physician", prescribed by the Department of Mental Hygiene and revised as of September, 1965, were introduced into evidence as part of Exhibit B. The forms contained six printed topic heads, each one followed by a number of blank lines on which the physician is ...


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