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COURT OF CLAIMS OF NEW YORK Claim No. 45986 1968.NY.44068 <>; 296 N.Y.S.2d 429; 58 Misc. 2d 626 December 24, 1968 MARY S. TIMMINS, AS ADMINISTRATRIX OF THE ESTATE OF KATHLEEN M. TIMMINS, DECEASED, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Moe Levine, Aaron J. Broder and Jack Shifter for claimant. Louis J. Lefkowitz, Attorney-General (Robert Schwartz of counsel), for defendant. Milton Alpert, J. Author: Alpert

Milton Alpert, J.

Author: Alpert

 On September 16, 1965, in the Town of Manasquan, New Jersey, Kathleen Mary Timmins, an infant of the tender age of 3, lost her life as the result of nonaccidental actions of her father, James Timmins, who was then on a home visit pass from Kings Park State Hospital where he was a patient. Mary Sarah Timmins, the wife of James Timmins and the mother of Kathleen Mary Timmins, was appointed administratrix, with limited letters, of the goods, chattels and credits of her daughter by the Surrogate of Kings County on November 30, 1965. Thereafter, she filed this claim for pain and suffering and wrongful death of Kathleen Mary Timmins which she claimed resulted from the alleged negligence and medical malpractice by the State of New York, its agents, servants and employees, in its care and treatment of the said James Timmins while a patient at Kings Park State Hospital and for the failure of the State to protect Kathleen Mary Timmins.

The claim was timely filed with the Clerk of the Court of Claims and the Attorney-General on December 23, 1965 and has neither been assigned nor submitted to any other court or tribunal for hearing or determination. The claim seeks a total of $350,590 in damages.

James Timmins was married to claimant in 1961 at the age of 25. Two children were born of this marriage: the deceased, Kathleen, and a son, a year younger than the deceased.

In May of 1964, James Timmins lost his job as a bank guard and did not obtain other steady employment. He began to drink and became depressed, abusive and quarrelsome. He developed insomnia and became restless. As a result, the marriage deteriorated during the latter part of 1964 and the first part of 1965. James Timmins' condition became progressively worse in that his depression deepened and he became more withdrawn. His actions became disturbed. On several occasions, while under the influence of alcohol, he attacked his wife.

It was finally decided by his wife, after consultation with his family, that he should be hospitalized and treated for his depression. On April 16, 1965, at the age of 29, James Timmins was admitted to Kings County Hospital Center, a hospital operated by the City of New York, upon his wife's petition. Upon his admission, claimant gave the hospital the necessary history which included statements that James wanted to commit suicide and to kill his wife. His condition at Kings County Hospital Center was diagnosed as "psychotic depressive reaction -- alcoholism."

At the Kings County Hospital Center, he came under the treatment and care of the staff physicians. In the furtherance of his treatment and therapy, he was granted home visitation passes, usually in the custody of his wife. Several of the visitations were of two and three days' duration. While at this hospital he was away on at least nine occasions -- May 7 to 8; May 22; May 28 to 29; May 31; June 5 to 6; June 11 to 13; June 18 to 20; June 25 to 29; July 2 to 5.

His depression and withdrawal continued and on July 15, 1965, James Timmins was transferred to Kings Park State Hospital, an institution operated by the New York State Department of Mental Hygiene. He was admitted here, too, upon the petition of claimant and upon the certificate of two physicians. Here, too, claimant gave the admissions director a detailed history concerning her husband. This, too, referred to his thoughts of suicide and that his wife should not live either. Obtaining this second history was necessary because the city hospital generally did not forward hospital records of patients.

It is noted that in neither of the above-referred-to histories, is there any statement concerning threats to kill his children. However, at the trial the claimant testified that she told doctors at the hospitals that her husband had said that their children did not deserve to live either.

Upon admission to the State hospital, in addition to consideration of the history, the patient was interviewed and observed and a diagnosis of "psychoneurosis: reactive depression" was made. Tests of the patient were ordered and treatment commenced. The patient's progress was noted in his records.

After some time at Kings Park State Hospital, James Timmins began to show some improvement under the treatment and medication being prescribed by the physicians at the hospitals, as evidenced in his hospital record. Home visitations and pass privileges were suggested as part of his therapy. His wife objected to such visits if they were to be to her home, but had no objections if such visits were to be in the custody of members of his family and not in her care.

Thereafter, commencing in August of 1965, the hospital records disclosed home visit authorizations on at least five occasions, two of which were in his wife's custody and three in the charge of a cousin, or one of his brothers -- August 15, 22, 26 and 29 and September 5.

On September 12, 1965, James Timmins was released for a six-day home-visit pass at the request of and in the custody of his brother Austin and to reside with him, at the latter's home in New Rochelle. This record of authorization states that James Timmins had "favorably responded to chemotherapy" and had "satisfactorily adjusted to the hospital routine." The doctor advised the brother of the request of the claimant that James Timmins not visit with her at her home in Brooklyn; and that that was the reason the pass permitted James Timmins to have a home visit at his brother Austin's home in New Rochelle. The brother was additionally instructed in regard to the medication to be given James and was advised by the doctor that if the visit did not go well or was not producing a beneficial effect, he should return the patient before the expiration of the visit.

Instead of going to and staying in New Rochelle in accordance with the understanding concerning this home visit, Austin Timmins apparently took James Timmins directly to the Brooklyn home of Edward Timmins, another brother. Edward's home in Brooklyn, was a few doors away from the claimant's home. When claimant learned of her husband's presence in Brooklyn, she did not inform the hospital. She did, however, make arrangements for ...

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