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May 6, 1983

VASHTI KATEPOO and TAMARA KATEPOO, by their guardian ad litem, BARBARA GITTLER, Plaintiffs,

The opinion of the court was delivered by: SAND


 Plaintiff in this malpractice action has, by order of the Supreme Court of New York, dated February 23, 1983, been appointed guardian ad litem of her stepdaughter Vashti Katepoo ("Vashti"). *fn1" Plaintiff describes Vashti as being "severely brain damaged and utterly dependent." (Gittler Affidavit para. 1). Vashti is presently a patient at the Payne Whitney Psychiatric Clinic, The New York Hospital ("Payne Whitney"), and plaintiff seeks by order to show cause brought under Rules 65(a) and 17(c) of the F.R.Civ.P. to compel "(1) . . . defendants to restore to plaintiff Vashti Katepoo twenty-four-hour-a-day registered nursing care or, in the alternative (2) requiring defendants to contribute toward payment by plaintiff's representatives for such twenty-four-hour-a-day registered nursing care an amount equal to the cost of the companion care defendants concede to be medically necessary". Order to Show Cause, April 12, 1983. For the reasons set forth herein, the application is denied.


 According to the affidavit of the plaintiff in support of the motion, Vashti and her daughter are citizens of Hawaii. On June 10, 1982, Vashti was admitted to Payne Whitney because she was suicidal and had tried to commit suicide that morning. On June 12, 1982, Vashti was found hanging from her own shoelace in her hospital room. Plaintiff asserts that, despite assurances furnished by defendants at the time of Vashti's admission and the following day that Vashti would be under constant observation for at least 72 hours and that "the level of observation would not be changed without my being notified", the defendants had changed the level of supervision from "maximum (constant)" to "frequent" observation and Vashti had been left unattended when she attempted suicide by hanging. (Gittler Affidavit para. 8).

 Since June 12, 1982, Vashti has been in a coma, brain damaged, fed through a tube surgically inserted through the wall of her stomach, incapable of speech, but, "nonetheless, aware, emotionally suffering, and in great physical pain." (Gittler Affidavit paras. 9, 10).

 It appears that following this tragic occurrence, the hospital agreed voluntarily to render medical care and treatment to Vashti, who remains at Payne Whitney. Vashti then came under the care of Dr. Frank A. Petito, a Diplomate of the American Board of Psychiatry and Neurology in the specialty of Neurology and an attending neurologist on the staff of The New York Hospital. (Petito Affidavit para. 1). Dr. Petito attests that on or about June 14, 1982, he was asked by the Chief of Neurology to act as the private attending neurologist for Vashti and that, after consultation with Vashti's stepmother and guardian, i.e., plaintiff, she consented to this relationship which continues to date (Petito Affidavit para. 2). From that time in June 1982 through January 1983, Vashti received twenty-four-hour, one-to-one nursing care, furnished at hospital expense.

 According to Dr. Petito, in January 1983, he discussed with plaintiff discontinuance of this level of nursing supervision and transfer of Vashti to a semi-private room on a neurological floor with other neurological patients and a constant companion. Dr. Petito goes on to assert:

Thereafter it was planned that the care and monitoring would be reevaluated. Those options to be considered at the time would include a constant companion; a return to one to one, twenty-four hour nursing care; and management by regular floor nursing care while in a semi-private room.
Barbara Gittler rejected the proposal regarding transfer to a semi-private room with a companion and has elected to provide one to one, twenty-four hour-a-day nursing care for Vashti at her expense.

 Petito Affidavit para. 3.

 When the order to show cause was first returnable, it was not the subject of supporting or opposing affidavits by physicians. The sole affidavit before the Court, furnished by The New York Hospital, was that of an administrator of the hospital asserting that the decision regarding the intensity of nursing care required by the patient was, in the first instance, that of her private attending physician. The affidavit continued:

It must be emphasized that the decision to afford Vashti one-to-one, twenty-four-hour-a-day nursing care was Dr. Frank Petito's. This decision was made when Vashti was moved from the Intensive Care Unit to a medical floor under Dr. Petito's care in the Summer of 1982. In January of 1983, it was Dr. Petito's medical judgment that one-to-one, twenty-four-hour-a-day nursing care was no longer medically necessary for Vashti. In fact, the possibility of changing Vashti's one-to-one, twenty-four-hour-a-day nursing care to companion care was discussed at a meeting attended by myself, Dr. Frank Petito, Barbara Gittler, and her husband Steven Lemberg in November of 1982.

 Affidavit of Anne Cote, para. 7.

 This Court inquired at oral argument whether there was any reason why Dr. Petito's recommendations were presented in this second-hand fashion. We were assured that there was no problem in furnishing an affidavit from Dr. Petito. We further stated that if such an affidavit were furnished that the burden would be on the plaintiff to make some showing that competent medical opinion -- as distinguished from plaintiff's lay subjective views -- supported the application. We stated that we recognized that the proceeding presented ...

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