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December 2, 1985

WILLIAM O'SHEA, Individually and as Executor of the Estate of MARION O'SHEA, Deceased, Plaintiff,

The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 Plaintiff William O'Shea, on behalf of himself and as the executor of the estate of Marion O'Shea, commenced this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2402, for negligence, medical malpractice, and wrongful death.

 Plaintiff alleges that the Veterans Administration Medical Center in Northport, New York ("Northport") acted negligently when its employees failed to admit plaintiff's son John O'Shea on August 5, 1980. Plaintiff further alleges that this negligent act was the proximate cause of a murder and assault that occurred three days later when John attacked his parents with a hammer, killing his mother. The United States has moved for summary judgment. Fed.R.Civ.P. 56(b).


 John O'Shea, the son of William and Marion O'Shea and brother of Michael O'Shea, was born in 1944 entered the armed forces in 1966, and received a medical/honorable discharge in 1968. He married in 1970 but became separated from his wife in February 1973 and went to live with his parents. He stopped working as a computer operator at about the same time and has not been employed since.

 On May 7, 1973, John was admitted to Beth Israel Hospital in New York City, claiming auditory hallucinations. After being placed in seclusion for the first twenty four hours of hospitalization because of hostility to the staff, he remained an in-patient with a diagnosis of acute paranoid schizophrenia until he was discharged on June 27, 1973.

 Five years later, John was involuntarily admitted to Queens General Hospital and later to Creedmoor Psychiatric Center. He had barricaded himself in his room at his parents' home and he carried a hammer because of his fears for his safety. *fn1"

 On approximately July 6, 1978, John was transferred to Northport as an in-patient, where he remained for approximately a year, after which he was treated as an out-patient at the Lynbrook Satellite Clinic ("Lynbrook") or Northport until the date of the incident giving rise to this lawsuit. During his time as a patient of the VA at Northport and also when he was treated at Lynbrook, doctors prescribed a variety of medications for John. The dosages were lowered and in August 1979 medication was later discontinued entirely in an effort to establish a drug-free therapy. Drug therapy was promptly re-prescribed, however, when his condition worsened.

 During his time as an out-patient by Lynbrook in the second half of 1979, John was evaluated monthly by a VA psychiatrist, Dr. Mocenigo, and continued to receive his medication. The periodic evaluations revealed that John's condition was basically stable. He was still living at home with his parents, taking his medication, relaxed, and apparently getting along with family and friends. At no time during his treatment as an out-patient did John exhibit any violent behavior and he was never considered dangerous to himself and others.

 After the coming of the new year, however, John's behavior began to change. He began to talk less frequently with his family, he stopped eating with them, he spent more time alone in his room, and he began to lose weight. Dr. Mocenigo increased the dosages, although John's condition continued to worsen, perhaps, as Dr. Mocenigo suspected, because John was not taking his medication. The doctor therefore administered an intramuscular injection instead of oral dosages, but later reverted to oral administration of the drugs. In late spring and early summer John's condition deteriorated further. He continued to lose weight. He ate sparingly in his room, where he spent most of his time, and rarely, if ever, communicated with his family. In July, Dr. Mocenigo changed the drug therapy to a more potent drug, but he did not prescribe intramuscular injections.

 In July or early August, John disappeared from home, taking $3000 and the family car. On August 4, he was found in Albany, New York where he had been living in the car for about a day and a half. He was taken into police custody and sent to Samaritan Hospital in Troy. John's family was contacted and his mother Marion and brother Michael went to Troy on August 5. An admission note, which was completed by a Dr. Armentano of Samaritan Hospital and given to Marion and Michael when John was discharged, summarized the highlights of John's psychiatric condition. It noted that John had not taken his medication in several weeks and concluded that John "was amenable to returning" to Long Island with his family. In Dr. Armentano's view, John "appeared to give tacit approval to being transported" to Northport. Dr. Armentano also stated that "the evaluation on the evening of admission revealed that the patient did not present any danger to himself or others." Defendant's Memorandum of Law, Exhibit E. On this basis John was discharged into the custody of his family.

 With Michael driving and John beside him, the O'Sheas went directly to Northport, where John presented himself for voluntary admission. During the day of August 5 plaintiff William O'Shea, John's father, had attempted to secure admission for his son at Northport. William was told, either by a Mrs. Sarah Velez, Northport's admitting supervisor, or a Mrs. Miller of Congressman's Wolf's office, that admission at Northport was on a first-come, first-served basis depending on the severity of the patient's condition. William was also informed that in order for John to be transferred from Samaritan Hospital to Northport, it would be necessary for a physician or social worker at Samaritan Hospital in Albany to submit a medical report to Dr. Derman, Northport's chief of psychiatry before John could be admitted there. It is not clear from the record and the parties dispute whether Michael or Marion knew of these admission procedures when they arrived at Northport in the early evening. Although Michael spoke with his father during the course of the drive back to Long Island, Michael was apparently unaware of any potential admissions difficulties at Northport and expected that John would be admitted when they arrived there.

 At the time the O'Shea's arrived at Northport, all beds in the psyschiatric wards of the hospital were filled, and hospital policy dictated that only patients in an emergency condition (i.e., those presenting a danger to themselves or others) could be admitted. The hospital would admit these patients on an emergency basis and for their safety during the night, they would be placed in another ward or area until the following morning when these emergency patients could be transferred to psychiatric wards after morning discharges created vacancies. If a patient did not present an emergency situation (i.e., the patient did not present an immediate danger to himself or others) then a ...

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