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August 24, 1994


The opinion of the court was delivered by: KIMBA M. WOOD


 Plaintiff was involuntarily admitted to and confined at Bellevue Hospital. She sues the City of New York, the New York City Health and Hospitals Corporation, and two individual doctors, alleging violation of her constitutional rights pursuant to 42 U.S.C. § 1983 and pendent state law negligence claims. The doctors move for partial summary judgment on plaintiff's constitutional claims. Plaintiff cross-moves for partial summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied.


 The following facts are undisputed. On May 25, 1991, plaintiff Florangel Rodriguez was examined at Bellevue Hospital ("Bellevue" or "the hospital") by defendant Dr. Eileen Sweeney, a second-year resident at the hospital. On the basis of this examination, and on information obtained from plaintiff's roommate, Dr. Sweeney concluded that plaintiff should be admitted involuntarily to Bellevue on an emergency basis, pursuant to New York Mental Hygiene Law (hereinafter "MHL") § 9.39 (McKinney 1985). Plaintiff was retained at Bellevue overnight and examined the next day by defendant Dr. Douglas Lee. As a result of his examination, Dr. Lee concurred in Dr. Sweeney's conclusion that plaintiff should be involuntarily admitted to the hospital. Plaintiff was kept and treated at Bellevue until May 28, when she was examined by another doctor and released. During her stay at the hospital, the drug Mellaril was administered to plaintiff.

 The parties offer differing versions, however, of the doctors' examinations and the events surrounding plaintiff's confinement. Dr. Sweeney states that she examined plaintiff for approximately an hour and twenty minutes. Defs.' 3(g) at P 8. Dr. Sweeney's notes of the examination, Def.'s Notice of Motion Ex. D at 13, state that plaintiff was brought to the hospital by her roommate because plaintiff had been unable to eat or sleep for two weeks. Id. The notes state that plaintiff was "tearful and sobbed loudly throughout most of the interview," id., that she appeared "depressed" and "anxious," and that she was "very tangential at times" and "unable to give clear answers to questions." Id. at 14. According to the notes, plaintiff provided the following information about herself: Plaintiff had been depressed "since 1990, when her marriage was annulled" and her ex-husband returned to Greece. Id. When plaintiff returned home to Venezuela after the annulment, her family was not supportive of her and was "more interested in the things I brought with me from America than in me." Id. Plaintiff returned to the United States and spent some time with her brother in Houston and friends in Indiana. She reported being depressed throughout this period. Id. Eventually, plaintiff came to New York and took a secretarial job in a bank. The section of Dr. Sweeney's notes labelled "family history" states that plaintiff's brother and two sisters had made suicide attempts or gestures by taking overdoses of sleeping pills. Id. at 14. Approximately eleven years ago in Venezuela, Dr. Sweeney noted, plaintiff saw a psychologist three times because she was depressed. Id. at 13.

 Dr. Sweeney recorded that plaintiff reported that "her job performance is poor because of her impaired concentration" and that "coworkers had noticed this." Id. According to the notes, plaintiff told Dr. Sweeney, "nothing makes me happy." Id. The notes state that plaintiff "admits to positive suicidal ideation. Says she doesn't care if car hits her while she is crossing the street. No clear suicidal plan at present, but says she wishes she would die." Id. Dr. Sweeney's notes also reflect information about plaintiff's recent behavior at home, obtained by telephone from plaintiff's roommate, Rosario Medina. Ms. Medina told Dr. Sweeney that, since moving in five weeks ago, plaintiff had not slept during the night, spent a lot of time in the bathroom at night, had daily crying episodes, did no household chores, and never wanted to go out. Id. According to the notes, plaintiff told Ms. Medina that she thought God had sent plaintiff to Ms. Medina because he thought Ms. Medina could help plaintiff. Id. Dr. Sweeney's preliminary diagnosis was that plaintiff was suffering from a "major depression with psychotic features." Id. at 14; Sweeney dep. at 32. Dr. Sweeney concluded that plaintiff was "very depressed, unable to care for herself and expressing positive suicidal ideation/intent as well as vague paranoid ideation. She is a potential danger to herself and would benefit from hospitalization." Id. at 14.

 Dr. Sweeney states that, after deciding to admit plaintiff, she presented plaintiff with a "Notice of Right to Appeal" and a "Notice of Status and Rights -- Involuntary Status," forms notifying plaintiff of her right to appeal the decision, and providing her with information about Mental Hygiene Legal Services, an independent agency that provides protection to involuntarily hospitalized persons. Defs.' 3(g) at PP 45, 46. According to Dr. Sweeney, plaintiff declined to sign the Notice of Appeal, and never availed herself of the appeals process. Sweeney Dep. at 76-77.

 Plaintiff claims that she went to Bellevue because Ms. Medina told her that she could obtain free sleeping medication from the hospital. When she arrived at Bellevue, she was told that she could not obtain medication without being examined by a doctor, and was thereafter examined by Dr. Sweeney. Pl.'s 3(g) at P 4. Plaintiff alleges that Dr. Sweeney examined her for only 20 minutes. Id. at P 3. According to plaintiff, much of the information recorded in Dr. Sweeney's notes is exaggerated or untrue. For example, plaintiff states that she never told Dr. Sweeney that she had not been able to eat or sleep for two weeks. Rather, plaintiff contends that she told Dr. Sweeney that she was having difficulty eating and sleeping at home for the past week because of stress created by her roommate, Ms. Medina. Pl.'s Aff. at P 6. According to plaintiff, Ms. Medina had been acting unreasonably toward her, demanding that plaintiff clean up the kitchen after cooking, but before sitting down to eat, and insisting that she clean the bathtub every time she took a shower. Plaintiff claims that Ms. Medina would "yell and become upset over inconsequential matters," and that this behavior had made it difficult for plaintiff to eat and sleep at home. Plaintiff claims that she had no difficulty eating outside of her home. Id. at P 10. Similarly, plaintiff claims that she did not lose interest in daily activities and household chores as Dr. Sweeney's note records Ms. Medina as saying; rather, plaintiff continued to perform household chores but would not accede to Ms. Medina's unreasonable demands. Id. at P 11.

 Plaintiff also states that she never told Dr. Sweeney that her brother and two sisters had made suicide attempts; rather, she told Dr. Sweeney that her brother and one of her sisters had each taken an overdose of sleeping pills, but that these were not genuine suicide attempts. Id. at P 18. Plaintiff states that she did not say "nothing makes me happy;" instead, she said that the past year "was not a happy time." Id. at P 13. Plaintiff claims that she never reported being "depressed," only "sad." Id. at P 9. According to plaintiff, she did not tell Dr. Sweeney that her family cared more about the things she had brought from America than they did about plaintiff. Rather, she told Dr. Sweeney that one member of her family appeared more interested in the things she had brought from America than in her, and that she received less support from her entire family than she would have liked. Id. at P 10. Plaintiff states that she told Dr. Sweeney that her job performance "had declined" and that she was afraid her coworkers would notice if the decline continued, not that her job performance was poor and that coworkers had noticed. Id. at P 15. Plaintiff concedes that she cried during the interview, but claims that this is because she was aware that she was at risk of involuntary hospitalization, and because Dr. Sweeney raised a number of painful topics. Id. at P 20. Plaintiff denies saying that she did not care if a car ran over her when she crossed the street and that she wished she would die. Plaintiff contends that this information must have been provided by Ms. Medina, and alleges that Dr. Sweeney accepted it as true without verification. Id. at P 12. Dr. Sweeney disagrees, stating that plaintiff herself made the statements. Sweeney Dep. at 31.

 Plaintiff also contends that Dr. Sweeney refused to listen to information that two other persons wished to provide about plaintiff. Plaintiff states that her sister arrived at the hospital after Dr. Sweeney's examination was completed, but before plaintiff's admission had been fully processed, and that Dr. Sweeney "was not interested" in speaking with her except to inform her of the decision to admit plaintiff. Pl.'s Aff. at P 8. Later, Ms. Barbara Lerman, who describes herself as plaintiff's "American mother" and with whom plaintiff is now living, spoke with Dr. Sweeney from Indiana and offered to come to New York to get plaintiff and take plaintiff home with her to Indiana. Plaintiff alleges that Dr. Sweeney refused to speak at length with Ms. Lerman, failed to ask her for information regarding plaintiff, and ended the call by telling Ms. Lerman that she was "exhibiting histrionics." Lerman Aff. at PP 1-5.

 Defendants and plaintiff also give differing accounts of plaintiff's interview with Dr. Lee, who examined plaintiff the day after she was involuntarily admitted. Dr. Lee's notes state,

[Plaintiff] summarized stressors which she has experienced in the past year: annulled marriage to Greek friend, loss of job, disappointment in family, unfamiliarity with people in New York, unfamiliarity with new job, clashes with roommate (she was so critical "she reminded me of my mother"). And frequently this was interrupted by tears and crying.

 Defs.' Notice of Motion Ex. D at 16. According to Dr. Lee's notes, plaintiff confirmed that she had been suffering from insomnia, loss of appetite, and decreased concentration, and described herself as "unable to read a book and comprehend/remember." Id. at 15. Plaintiff also confirmed, the notes state, that she was in a depressed mood, had lost energy, had suffered a decrease in job performance, and a loss of interest in pleasurable activities. Id. Dr. Lee's notes report that plaintiff denied having suicidal ideations on the day he examined her, but confirmed that she had expressed them the day before, saying, "Everyone thinks about it at one time or another." Id. at 15-16; Lee Dep. at 49. Dr. Lee concluded that plaintiff was suffering from "major depression." His notes state, "Patient without significant change since yesterday, although no signs of psychosis and denies suicidal ideation. However, patient has prominent major depressive symptoms by history as well as on mental status exam." Dr. Lee recommended that plaintiff's involuntary admission be confirmed.

 Plaintiff contends that Dr. Lee examined her for ten minutes. She claims that Dr. Lee never spoke with her about a decrease in energy level, lack of concentration, decreased ability to function, or disappointment in family matters. Plaintiff states that she "told Dr. Lee what [she] told Dr. Sweeney." Pl.'s 3(g) at P 86. Plaintiff contends that although she did tell Dr. Lee she was having difficulty reading and comprehending a book, this difficulty was due to medication prescribed by the hospital, and not to any difficulty she had prior to coming to Bellevue. Pl.'s Aff. at P 26. Plaintiff alleges that she never told Dr. Lee that she had said that she did not care whether a car hit her on the day before. Plaintiff denies that her interview with Dr. Lee was frequently interrupted by crying.

 Finally, defendants' account of plaintiff's treatment with the drug Mellaril differs from that of defendants. Plaintiff alleges that on May 25, 1991, Dr. Sweeney prescribed the antipsychotic medication Mellaril for plaintiff, without telling plaintiff that the medication had been prescribed and the reasons for its prescription, and without informing plaintiff of the known risks and benefits of the drug. Pl.'s 3(g) at PP 7-8. Plaintiff alleges that the hospital staff administered the medication on May 25, 26, and 27, also without providing her with the aforementioned information. According to plaintiff, she suffered a serious negative reaction to the medication, including palpitations, tremors, dizziness, blurred vision and faintness. Id. at P 18. Plaintiff claims that she would have refused the medication had she known of the possible side effects. Defendants, in contrast, state that the custom of hospital personnel is to inform patients that they are about to receive medication, to identify the medication, and to explain the intended purposes and possible side effects of the medication. Defs.' 3(g) at PP 8, 10, 17, 20. Dr. Sweeney and the nurses who administered Mellaril to plaintiff allege that they adhered to their usual practice in treating plaintiff. Id. Defendants also deny that plaintiff suffered an adverse reaction to her medication, and state that, when plaintiff complained of not feeling well on May 27, 1991, she was examined by a doctor and found not to be in distress. Id. at 18. No adverse reaction is recorded in plaintiff's hospital records. See Defs.' Notice of Motion Ex. D.

 On January 11, 1993, plaintiff filed this lawsuit. Plaintiff's first, second, fifth, and sixth causes of action raise claims pursuant to 42 U.S.C. § 1983 and state law arising out of her involuntary admission to Bellevue. Plaintiff alleges that defendants admitted her without properly making the determinations required by MHL § 9.39, and that this admission violated her right to procedural and substantive due process (plaintiff's first and second claims, respectively). In addition, plaintiff alleges that defendants mistakenly diagnosed her as suffering from major depression with psychotic features, and that, on the basis of this diagnosis, they made a treatment decision that fell below minimally accepted standards of professional judgment. Plaintiff claims that the alleged treatment decision violated her substantive right to due process (fifth claim) and constituted negligent diagnosis under state law (sixth claim). Plaintiff's third and fourth claims pertain to the administration of the drug Mellaril. Plaintiff alleges that defendants failed to inform her of the benefits, risks, and available alternatives to the drug, thereby subjecting her to treatment falling below minimally accepted professional judgment standards in violation of her due process rights (third cause of action). Plaintiff also alleges that the administration of Mellaril violated her right to informed consent pursuant to state law (fourth cause of action). *fn1" Finally, in her seventh cause of action, plaintiff seeks a declaratory judgment that she is not liable for the costs of her involuntary confinement. Plaintiff seeks compensatory damages, punitive damages, an injunction ordering the expunging of her hospital records, and the aforementioned declaratory relief. By an Order of the court dated July 20, 1993, with the consent of the parties, plaintiff's constitutional claims against the City of New York and the New York City Health and Hospitals Corporation were bifurcated from the rest of the action pursuant to Federal Rule of Civil Procedure 42(b), and related discovery was stayed pending resolution of the question of whether plaintiff's rights were violated. Defendants Sweeney and Lee then moved for summary judgment as to plaintiff's first, second, and fifth causes of action. *fn2" Plaintiff cross-moved for summary judgment on her first, third, and seventh claims.

 Summary Judgment Standard

 Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). The court's responsibility in deciding a summary judgment motion is not to resolve disputed issues of fact, Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any factual issues to be tried. When deciding a motion for summary judgment, a court must "'resolve all ambiguities and inferences . . . in the light most favorable to the party opposing the motion.'" Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986) (citations omitted).

 The Parties' Summary Judgment Motions on Plaintiff's First and Second Claims

 Defendants' motion for summary judgment on plaintiff's substantive and procedural due process claims rests on two grounds. First, defendants argue that plaintiff has failed to raise an issue of triable fact as to whether the doctors complied with MHL § 9.39. Defendants correctly point out that in Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983), the Court of Appeals for the Second Circuit held that MHL § 9.39 meets both substantive and procedural due process requirements. Therefore, defendants contend, if Drs. Sweeney and Lee fully complied with MHL § 9.39, plaintiff's constitutional claims must fail, and the doctors are entitled to win as a matter of law. Def. Mem. at 10. Second, defendants argue that even if they did not comply with MHL § 9.39, Drs. Sweeney and Lee are entitled as a matter of law to qualified, good faith immunity as to plaintiff's substantive and procedural due process claims.

 Plaintiff cross-moves for partial summary judgment on the issue of defendants' compliance with MHL § 9.39. Arguing that the mandatory language of MHL § 9.39 creates a liberty interest in freedom from involuntary hospitalization except upon the occurrence of behavior specified in the statute, Pl.'s Mem. at 6-8, plaintiff contends that plaintiff's conduct did not rise to the level of the specified behavior, that defendants failed to comply with MHL § 9.39 as a matter of law, and that therefore plaintiff's due process rights were violated. Although plaintiff's Notice of Motion indicates that she moves for summary judgment on her substantive due process claim only, her memorandum of law appears to argue for summary judgment on the procedural due process claim as well. Pl.'s Mem. at 9. Indeed, at several points in plaintiff's submissions, her argument makes it difficult to distinguish between her substantive and her procedural due process claims. *fn3" I need not determine the precise scope of plaintiff's summary ...

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