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PASTORELLO v. CITY OF NEW YORK

February 4, 2004.

JOAN PASTORELLO, Plaintiff -against- CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, KATHLEEN HUNZICKER, M.D., SHEPARD GREENE, M.D., JANET LANNIGAN, DOROTHEA SCHUETZ-MUELLER, LUCY MUELLER, M.D., CAROLYN GRIFFITHS, R.N., JOHN DOE #1 (SECURITY GUARD), JOHN DOE #2 (SECURITY GUARD), JOHN DOE #3 (SECURITY GUARD), Defendants


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER
Plaintiff Joan Pastorello brought an action against certain hospital medical. administrative, and security staff associated with the Bronx Municipal Hospital Center ("Jacobi"), the New York City Health and Hospitals Corp. ("HHC"), and the City of New York for violations of her rights under the Fourth, Fifth, Sixth, Eight and Fourteenth Amendments of the United States Constitution Plaintiff also argued that defendants failed to comply with state law procedural due process protections.

For purposes of both discovery and trial, the Court bifurcated plaintiff's claims against the individual defendants from her Monell claims against the municipal defendants The first trial began on October 20, 2003 Plaintiff asserted claims against five individuals three physicians, Kathleen Hunzicker, Shepard Greene, and Dorothea Schuetz-Mueller; a nurse. Page 2 Carolyn Griffiths; and Janet Lannigan, a hospital administrator.*fn1 The jury returned a verdict in favor of all defendants, rejecting plaintiff's claims in their entirety.

  Plaintiff now moves pursuant to Rule 50(b), Fed.R.Civ.P., for a judgment as a matter of law against the three physician defendants, Hunzicker, Greene, and Schuetz-Mueller. For reasons that follow, plaintiff's motion is denied.

  I. BACKGROUND

  The facts of this case are stated in prior opinions reported at 2003 WL 1740606 (S.D.N.Y. Apr. 1, 2003) and 2003 WL 22118972 (S.D.N.Y. Sept. 11, 2003), familiarity with which is assumed. The individual defendants subject to plaintiff's motion for a judgment as a matter of law were all residents in training at Jacobi Hospital when the events related to plaintiff's case took place. The facts with relation to the individual defendants implicated in this motion are stated infra.

 A. Kathleen Hunzicker

  Dr. Hunzicker was a first year resident in training with the plastic surgery department at Jacobi Hospital at the time these incidents took place. On the morning of Friday, February 26, 1993, at 10:00 AM, Hunzicker examined plaintiff while she was still in Jacobi's Emergency Room ("ER"). Upon examination, Hunzicker ordered the admission of plaintiff to Ward Two South, a plastic surgery unit, for treatment.

  By 1:30 PM that same afternoon, plaintiff still had not been transferred to the plastic surgery unit While she was waiting for admission, plaintiff expressed to ER personnel her desire to leave the hospital. At that point, Dr. Oscar Rodriguez, an attending psychiatrist on the Jacobi staff, placed an "on hold" order to retain plaintiff in the ER Rodriguez's stated reasons Page 3 for doing so, according to the ER records in evidence, were that plaintiff appeared agitated and expressed her desire to leave. According to the testimony of Dr. Scott Rogge, at the pertinent times a unit chief for one of Jacobi's psychiatric wards, an "on hold" order is a standard practice enabling physicians to detain patients who are agitated and at risk of harm if they leave the hospital. Plaintiff contends that prior to placing her "on hold," New York Mental Health Law ("M.H.L") § 9.39 should have been triggered.*fn2 That provision accords hospital patients certain procedural protections prior to retaining those patients in the hospital against their expressed will to the contrary. See Part II. Standards of Law. Section B. Due Process Under New York State Regulations, infra.

 B. Shepard Greene

  When Hunzicker examined plaintiff again on the morning of Saturday, February 27, this time in the plastic surgery unit, plaintiff again expressed a desire to leave the hospital Plaintiff said she wanted to go to Lenox Hill Hospital, where she had been previously treated Hunzicker then attempted to contact plaintiff's physician at Lenox Hill Hospital, but could not gel in touch with that physician in order to arrange a transfer In accordance with hospital policy providing that all patients who seek to leave the hospital against medical advice be seen by a psychiatrist, Hunzicker ordered a series of examinations by consultant physicians on call, including one by Dr. Shepard Greene, a fourth year psychiatric resident.*fn3 Greene's diagnosis was that plaintiff Page 4 exhibited signs of paranoia and delusions, and was not competent to leave the hospital against medical advice. Green recommended that plaintiff be further evaluated for possible treatment.

 C. Dorothea Schuetz-Mueller

  Greene's recommendation was implemented by Dr. Schuetz-Mueller, a third-year psychiatric resident at Jacobi Hospital. On Sunday, February 28, 1993, Schuetz-Mueller was called to the plastic surgery unit to evaluate plaintiff for discharge. According to Schuetz-Mueller's testimony, while she was examining plaintiff, plaintiff acted with hostility towards her, grabbing her necklace and causing it to break. At the conclusion of her examination, Schuetz-Mueller recommended initiating a M.H.L § 9.39 proceeding in order to retain plaintiff in the psychiatric ward. Schuetz-Mueller presented her case to Dr. Brown, the psychiatric attending on call in the Psychiatric ER at the time, and Brown signed the § 9 39 form formally initiating the proceeding.

  II. STANDARDS OF LAW

 A. Motion to Renew Plaintiff's Motion for Judgment as a Matter of Law

  The standards governing a Rule 50(b) motion have been outlined in detail in Yurman Design Inc. v. PAJ Inc., 262 F.3d 101 (2d Cir. 2001). In that case, the Second Circuit held that a Rule 50(b) motion

 
may not be granted unless the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. This standard will be met only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable ...

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