or failed to apply whatever superior knowledge he had for the plaintiff's benefit.
Sitts v. United States, 811 F.2d 736, 739-40 (2d Cir. 1987) (emphasis added) (citing, Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 262-63, 292 N.Y.S.2d 440, 447, 239 N.E.2d 368 (1968); Monahan v. Weichert, 82 A.D.2d 102, 105-06, 442 N.Y.S.2d 295, 297-98 (4th Dept. 1981)).
24. In addition, plaintiff must establish that the defendant's negligence was a substantial factor in producing the alleged injury. See Koster v. Greenberg, 120 A.D.2d 644, 502 N.Y.S.2d 395 (2d Dept. 1986).
25. Plaintiff argued only that the VA doctors failed to exercise ordinary and reasonable care. However, as noted earlier, plaintiff's expert failed to identify what the accepted standards of practice were at the time.
26. The applicable standard was, nevertheless, amply demonstrated by plaintiff's private physicians. For seven years, Dr. Diefenbach issued month-long prescriptions for 240 mg. codeine and 40 mg. valium per day. At least two other private physicians provided analgesics and benzodiazepines for prolonged periods of time. These examples show that the VA's thirty-day prescriptions were not improperly "open-ended," "irresponsible" or "unsupervised."
27. Dr. Diefenbach believed plaintiff needed medication to function and therefore continued to prescribe.
28. He warned the patient against depending on drugs and attempted to wean him from valium by substituting other drugs.
29. Defendant's expert confirmed that this was the standard practice; thus, the VA's continued prescriptions, together with recommendations to detoxify, were appropriate, until such time as the plaintiff decided he was ready to discontinue.
30. When the VA stopped dispensing valium on an outpatient basis, it was well within accepted standards of care to substitute librium, xanax and dalmane.
31. Plaintiff failed to prove that the VA's treatment caused or perpetuated his dependency upon medication.
32. There was no proof of any physical dependency, although plaintiff was already psychologically dependent, at least on narcotic analgesics, before he began treatment at the Long Beach VA.
33. When he left the VA's care six years ago, he continued to take the same or similar medications from private doctors, and he has never sought detoxification.
34. Based on this history, the Court concludes that treatment at the VA was not a substantial factor in causing or perpetuating plaintiff's habituation to analgesics and benzodiazepines.
35. No matter what the VA did or did not do, this plaintiff would have sabotaged the doctors' efforts.
36. Plaintiff substantially caused his own problems by refusing work up, psychiatric treatment and detoxification.
37. Each time the VA ceased to supply valium or tylox, plaintiff simply obtained the drugs from private physicians. There is no reason to think that if the VA had stopped prescribing any earlier, plaintiff would, in fact, have stayed off medication.
38. Plaintiff failed to file an adequate or timely administrative claim with regard to the Long Beach VA, and failed to file any administrative claim as to the Northport VA. Plaintiff also failed to identify the applicable standard of care, establish causation or demonstrate liability on the part of either the Long Beach VA or the Northport Va.
39. Accordingly, the Clerk is directed to enter judgment in favor of the defendant United States with costs.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
January 2, 1992